PE CEOS vi each D at cee CORNELL UNIVERSITY LAW LIBRARY "The Moak Collection | PURCHASED FOR | The School of Law of Cornell University And Presented February 14, 1893 IN TIEMORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access fo it (or modified or partial versions of if) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® CASES AND OPINIONS ON CONSTITUTIONAL LAW. Digitized by Microsoft® Digitized by Microsoft® CASES AND OPINIONS ON CONSTITUTIONAL LAW, AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE, Collected and Digested from Oilicial Documents and other Sources ; WITH NOTES. BY \ WILLIAM FORSYTH, M.A.,Q.C, STANDING COUNSEL TO THE SECRETARY OF STATE IN COUNCIL OF INDIA, _ AUTHOR OF “THE LAW RELATING TO COMPOSITION WITH CREDITORS,” “ HORTENSIUS,” “HISTORY OF TRIAL BY JURY,” “LIFE OF CICERO,” ETC, LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. “‘Hominum peritorum responsa sunt nobis cognoscenda.” Cic. Epist. Fragm. apuil Nizolium. LONDON: STEVENS & HAYNES, Late Publishers, 11, BELL YARD, TEMPLE BAR. 1869. Digitized by Microsoft® AU LONDON: PRINTED BY WILLIAM CLOWSS AND SONS, STAMFORD STREET AND CHARING CROSS, Digitized by Microsoft® PREFACE. In 1814 a book was published called “ Chalmers’s Opinions of Eminent Lawyers;” and, notwithstanding its faulty and - inconvenient arrangement, and, the quantity of useless matter with which it is encumbered, the work has always enjoyed a high reputation, and is still frequently consulted when cases occur involving questions of Constitutional Law. Lately an edition has been published in America. This is only what might have been expected with regard to a book which has made known to the world the legal Opinions, on many points of .interest and importance, of such men as Lord Somers, Chief Justice Holt, Lord Hard- -wicke, Lord Talbot, Lord Mansfield, and others, given when they were the Law Officers of the Crown. Since then, how- ever, there has been a complete silence and blank; and the Opinions of the Law Officers, given from time to time to the different Departments of the State during the last sixty or seventy years, have been consigned to oblivion, and buried in the dusty archives which have been puaeye inacces- sible— “«_____ omnes illacrymabiles Urgentur, ignotique longa Nocte The idea occurred to me that I should be doing good “service, not only. i,t the Fre ofession . fo, which I belong, but b 2 vi PREFACE. also to the Public, if I were to rescue some of the most valuable of these Opinions from their obscurity, and publish them with explanatory Notes. Slightly varying a line of Horace, we may surely say, “ Vixere fortes post Aga- memnona multi;” and, great as were the lawyers whose Opinions have been preserved by Chalmers, there has been a succession of lawyers since equally great, who may worthily compete with them in acuteness of intellect and depth of legal knowledge. In the present Volume will be found, for the first time, the official Opinions of Lord Lyndhurst, Lord Abinger, Lord Truro, Lord Denman, Lord Cranworth, Lord Campbell, Lord St. Leonards, Lord Romilly, Lord Westbury, Lord Cairns, Lord Chelmsford, - the present Lord Chancellor (Lord Hatherley), Sir William Garrow, Sir Samuel Shepherd, Sir James Marriott, Sir Christopher Robinson, Chief Justice Tindal, Chief Justice Jervis, Mr. Justice Keating, Sir William Follett, Lord Chief Justice Cockburn, Lord Chief Baron Kelly, Sir Frederick Pollock, and others. The labour and difficulty of collecting and arranging these have been greater than I am likely to get credit for. The Opinions of the Law Officers given to the Colonial Office down to a recent period are scattered over two or three thousand manuscript volumes which are kept in the Record Office; and there is no general index to assist the search. It would, in fact, have been impossible for me to bestow the time and endure the fatigue necessary to find them, if I had not had a clue to the labyrinth supplied to me by M. Halksworth, the Librarian of the Colonial Office. But this did not extend back earlier than 1813, and I was obliged, therefore, to limit my search to the period sub- sequent to that date. I regret this, as no doubt much valuable matter is to be found in the manuscript volumes of an earlier date; and I hope that the same arrangement Digitized by Microsoft® PREFACE. vii for facility of reference which has been adopted in the later volumes will be applied to the older ones, although it will be too late for my own Work, unless it should have the good fortune to reach another edition. I have now the pleasing duty to perform of acknowledg ing the great kindness and assistance I have received in the course of my Work. To Earl Granville, the Secretary of State for the Colonies, I especially desire to tender my thanks, for the liberality and courtesy with which he assented to my application to be allowed to examine the archives, and publish the Opinions of the Law Officers in that Department. It was a thing for which there was no precedent ; and if there had been a stiff adherence to official routine, I should have met with a refusal which, I venture to say, considering the value of the Opinions here for the first time made known to the world, would have been a public loss. I must express also my thanks to the Lords of the Treasury, for ‘allowing me to select and publish some Opinions of the Law Officers; and to my friend, Mr. Greenwood, Q.C., Solicitor to the Treasury, for the kind assistance he rendered to me. I regret that I cannot make a similar acknowledgment in the case of the Foreign Office. At the suggestion of high authority I wrote to the Earl of Clarendon a letter, which I am sure was unexceptionable in its tone, asking for permission—not to examine the archives of the Foreign Office, to which I felt there might very reasonably be an objection—but to be supplied with a few legal Opinions of old date, which could have no bearing upon any ques- tion in controversy at the present day. To my letter, however, I received no answer. I must express my thanks to Sir Frederic Rogers, the Under-Secretary of State for the Colonies, and to Mr. Henry Holland, the Standing Counsel to that Department, for their Digitized by Microsoft® viii PREFACE. obliging and ready assistance; also to Mr. Kingston, of the Record Office, for the very efficient aid he gave me in searcb-. ing the manuscripts there; to my friend, Sir Travers Twiss, the Queen’s Advocate, for the loan of two curious manu- script volumes which formerly belonged to Sir James Marriott, and of which I have made considerable use; and to my friend, Mr. Rothery, Chief Registrar of the Court of. Admiralty, for two valuable manuscript Opinions. I thought it right to obtain the consent of such Az Law. Officers as are still living before I made use of their Opinions ; and I am happy to say that, except in two cases where I had no answer, I received the fullest and most unreserved. permission to do so. And why should such Opinions not be published, provided they are of sufficiently late date to avoid questions at issue or in controversy now ? Inthe United States the Opinions of the Attorney Generals are published in eleven volumes, down even to the last. two or three years; and surely no possible harm can ensue, but on the contrary much good may result, from knowing what the opinions have been, upon questions of Constitu- tional Law and public interest, of some of the greatest lawyers who have ever lived. For reasons which will be easily understood, it was not thought expedient to publish Opinions of the Law Officers of: a later date than 1856, or thereabouts; and my chief regret for this is, that I have thus heen obliged to exclude the official Opinions of that distinguished lawyer and jurist, Sir Roundell Palmer. I hope that the Notes will be found useful, as I have endeavoured to bring down the law on each subject to the latest possible date. W. F. Digitized by Microsoft® CONTENTS. CHAPTER I. On toe Common Law anp Statute Law APPLICABLE TO THE COLONIES. OPINIONS. (1.) Of Mr. West, Counsel to the Board of Trade, that the Common Law PAGE of England is the Common Law of the Colonies as 1 (2.) Of the Law Officers, Sir Charles Pratt and Hon. Charles Yorke, that English Subjects carry with them English Laws... 1 (3.) Of the Attorney General, Sir Philip Yorke, as to the extension of the : Statute Law to a Colony “ 2 (4.) Of the Law Officers, Sir Robert Henley andl Hon. Charles Yorke, as i “how far subjects emigrating carry with them the Statute Law i 2 (5.) Of the Law Officers, Sir William De Grey and Sir Edward Willes, on the extension of Acts of Parliament to the Colonies, when they are mentioned generally as dominions of the Crown as 3 (6.) Of the Law Officers, Sir Christopher Robinson, Sir William Ganay, and Sir Samuel Shepherd, as to the powers of Government vested in the Crown with respect to the Colony of Berbice .. 4 (7.) Of the Law Officers, Sir James Scarlett and Sir N. C. Tindal, on certain inquisitorial Powers claimed by the House of Assembly in Antigua .. 6 (8.) Of the Law Officers, Sir William Horne and Sir J ohn Campbell, as to provisions of Charter of Justice not being” at variance with Terms of Capitulation in the Mauritius .. ; 7 (9.) Of the Law Officers, Sir John Canspbetl anid Bir R.M. ‘Raltew as sto eal, ‘ing of writs issued for election of House of Assembly in Newfoundland 7 (10.) Of the same Law Officers, as to power of the Queen in Council to make Laws for South Australia .. © 8 (11.) Of the same Law Officers, as to question of disqualification to sit i in the House of Assembly in Newfoundland .. ua 9 (12.) Of the Law Officers, Sir John Campbell and Sir Thomas Wilde, on the appointment of Magistrates in the Mauritius 10 (18.) Of the Law Officers, Sir A. E. Cockburn and Sir Richard Bethell, 0 on the power of the Legislature of St. Helena to pass an Ordinance con- ferring on a Foreigner power to hold Land in St. Helena .. 11 * NOTES .. , ‘a ‘i i “i ai af +» 12-34 Digitized by Microsoft® x CONTENTS. CHAPTER II. On rae Eccnesrastica, LAW APPLICABLE TO THE COLONIES. OPINIONS. (1.) Of the Attorney General, Sir Edward Northey, as to Roman Catholic Priests in the Colonies oe “ - (2.) Of the Law Officers, Sir Philip Yorke aiid Sir Clement Weare, on Con- vocations or Synods of the Clergy or Dissenting Ministers in New England are (8.) Of the Attorney General, Sir Edward Northey, on the idl at ieee tation to benefices in Virginia os . (4.) Of the Attorney General, Sir Edward Norte, on Big granting a Letters of Administration on the same Estate both in England and the Colonies .. *s (5.) Observations by the King’ $ Aarons, gis James a Marriot; on astindus residence at a living in Barbadoes in the case of the Rev. Mr. Bar- nard .. a an at a (6.) Opinion of the King’s Aifvorata, Sir uretopher Hublieen, on a Marriage performed by a Methodist Minister in Newfoundland .. (7.) Of the Law Officers, Sir Christopher Robinson, Sir J. 8. Copley, and Sir Charles Wetherell, on the duties of the Governor and Bishop of a Colony in collating and instituting to benefices - .. an (8.) Of the King’s Advocate, Sir C. Robinson, on the appointment of a Roman Catholic Bishop in Canada .. (9.) Of the Law Officers, Sir John Dodson, Sir eas Garyibal, oa Sir R. M. Rolfe, on the appointment of a Suffragan Bishop of Montreal (10.) Of the Law Officers, Sir John Campbell and Sir R. M. Rolfe, on the incorporation of a Roman Catholic College in Prince Edward’s Island .. ie “ _(11.) Of the Law Officers, Sir Rrailiiee Pollock and ‘Sir ‘William W. Follett, on the authority of the Crown to interfere with and make regula- tions respecting the appointment of Roman Catholic Bishops in Canada .. as (12.) Of the Law Officers, Sir J Toten Dodson, Sir Frederick Thesiger, and Sir FitzRoy Kelly, on the status of Clergymen of the Church of England, and the Jurisdiction of the Bishop, in Van Diemen’s Land.. sa (18.) Of the Law Officers, Sir J. D. Harding, Sir Frederick Thesiger, and Sir F. Kelly, on the patronage of Benefices and cee of Missionaries in Prince Edward’s Island a NOTES .. ae Digitized by Microsoft® PAGE 35 36 42 43 46 48 49 50 51 51 52 54 55-63 CONTENTS. CHAPTER III. Xi On tae Powers anp Dutims anp Crvit anp CriminaL LIABILITIES OF GoveRNors or CoLoNrEs. OPINIONS. i (1.) Of the Law Officers, Sir Thomas Trevor and Sir John Hawles, as to how a Lieutenant-Governor could be tried for Misdemeanor as (2.) Of Mr. Reeve and Mr. Lutwyche, on the effect of the Demise of the Crown on a Colonial Act granting a salary to the Governor of a Colony .. aa (8.) Of the Law Officers, Sir Thomas Trevor and Sir J Ske Hayle, on the determination of a Governor’s Commission .. (4.) Of Mr. West, Counsel to the Board of Trade, as to whether a Governor can vote as a Councillor (5.) Of the Attorney General, Sir John Willes, on i tts right of the Pro- prietor of Maryland to appoint to offices under the King’s Charters (6.) Of the Law Officers, Sir William Garrow and Sir Samuel Shepherd, as to the devolution of the authority of Governor of a Colony ae (7.) Of the Law Officers, Sir James Scarlett and Sir E. B. Sugden, as to power of Governor to revoke assignment of a Convict o. (8.) Of the Law Officers, Sir John Campbell and Sir R. M. Rolfe, as to power of Governor to suspend a Colonial Officer appointed by Order in Council aie (9.) Of the Law Officers, Sir 0. Robinson, Sir R. Gifford, wil Sir J. Guile, on the notification of the Demise of the Crown in a Colony : (10.) Of the Law Officers, Sir J. Campbell and Sir R. M. Rolfe, as to effect of Demise of the Crown on the Commission of the Governor of a Colony .. os (11.) Of the Law Officers, Sir a Campbell and Sir T. Wilde, as to appoint ment of Members of the Legislative Council of Canada... (12.) Of the Law Officers, Sir J. Dodson, Sir F. Pollock, and Sir W. Follett, as to power of Government of Canada to grant an exclusive Right of Ferry between that Province and the United States “e $5 (18.) Of the Law Officers, Sir F. Pollock and Sir W. Follett, on the neces- sity of the concurrence of the Council of a Colony in granting leave of absence to Public Officers .. * (14.) Of the Law Officers, Sir John Jervis aud Sir John Romilly, on the grant of a Conditional Pardon for murder in British Guiana ae (15.) Of the Law Officers, Sir A, E. Cockburn and Sir R. Bethell, on the grant of a Conditional Pardon by the Governor of a Colony in virtue of the general power to pardon conveyed by his Commission a (16.) Of the same Law Officers, that the power of Pardon is not vested in the Superintendent of Honduras... (17.) Of the Law Officers, Sir R. Bethell and Sir H. 8. Rontins as - the lei meaning of the phrase “ Governor in Council ” ‘ (18.) Of the Solicitor General, Sir H. Cairns, as to legality of Government of a Colony administered by Officer appointed by the Governor in the absence of the Officer on whom that function devolved by Royal Charter .. es 7 we ns OGRE 2 ae owe ee wma Digitized by Microsoft® PAGE 64 65 66 66 67 66 69 7 qT . xii CONTENTS. CHAPTER IV. On Vicz-ADMIRALTY JURISDICTION AND Piracy. OPINIONS. PAGE (1.) Letter from Mr. Stainsby to Sir J. Marriott, King’s Advocate, on the ; origin of the Court of Admiralty .. 90 (2.) Opinion of the King’s ‘Advocate, Sir J. Cadlees: on the J jurisdiction of ’ the Court of Admiralty in the Colonies ae - 91 (8.) Of the same, on the seizure of a Spanish brigantine on ihe igh seas, -- by a non-commissioned vessel “a 938 (4.) Of Mr. Fane, Counsel to the Board of Trade, on , the Aamieelty Juris- diction in the Bahamas = 94 (5.) Of the King’s Advocate, Sir C. Robinson, on the J cdieliation of Vine: -- Admiralty Courts “ .. 94 (6.) Of the Law Officers, Sir C. Takinaons Sir R. Gifford, ne Sir J. S. Copley, "on a question of Jurisdiction between the Vice-Admiralty and the Colonial Courts at the Cape of Good Hope .. 95 (7.) Of the Law Officers, Sir J. Dodson, Sir F. Pollock, and Sir Ww. Follett, on the question whether the Supreme Court of Newfoundland could exercise Vice-Admiralty Jurisdiction out of Term .. 96 (8.) Of the Law Officers, Sir J. Dodson, Sir J. Romilly, and Sir A. E. Cockburn, on the power of the Crown to issue Commissions under 46 Geo. 3, c. 54, notwithstanding 12 & 18 Vict. c. 96 - 97 (9.) Of the Law Officers, Sir J. 8. Copley, Sir C. Wetherell, Mr. Plunket, Mr. Foster, and Mr. Twiss, on the Constitution, Authority, and Power of the Court of Admiralty in Ireland a 99 (10) Of the King’s Advocate, Sir C. Robinson, and the Adialvalie Ailwee ~ cate, Mr. Arnold, on the Irish Admiralty Court... 108 (11.) Of the same Law Officers, on the appointment of H.R.H. the Duke é Clarence to be Lord High Admiral, and his Rights as such » 110 (12.) Of Sir Richard Lloyd, Judge of the Court of Admiralty, on the pro- ceedings in Jamaica against Deane the Pirate i 111 (13.) Of the Law Officers, Sir E. Northey and Sir W. Thsnrson, on the pardon of Pirates in the Colonies .. 113 (14.) ue the Law Officers, Dr. Hay, Hon. C. Yorks, and Sir F. Nowan, ¢ on ‘the Admiralty Jurisdiction in the case of murder on the High Seas 114 NOTES .. as be wi a os a 116-118 CHAPTER V. On Crrrain PREROGATIVES OF THE CROWN. (1) Lands in the Colonies ; (2) Grants; (8) Escheats; (4) Mines; (5) Treasure Trove; (6) Royal Fish; (7) Felons’ Goods; (8) Writ Ne exeat Regno; (9) Proclamations (in note) ; (10) Cession of Territory ; (11) Erection of Courts of Justice. OPINIONS. (1) Of the Law Officers, Sir Edward Northey and Sir William Thomson, on the King’s right to the Three Lower Counties on Delaware Bay.. 119 Digitized by Microsoft® CONTENTS. (2.) Of Mr. West, Counsel to the Board of Trade, on the King’s right to ‘ the woods in the Province of Maine .. . os (3.) Of the Law Officers, Sir Dudley Ryder and Sir Willian Murray, on the King’s right to certain waste lands in New Hampshire (4.) Of the Law Officers, Sir Philip Yorke and Sir Charles Talbot, on the question whether the King’s right to the lands of Pemaquid re- mained in the Crown .. a (5.) Of the Law Officers, Sir Dudley’ Hyder and Sir Willian iinway, 3 on the King’s wight to make new grants of land in New one shire .. (6.) Of the Law Officers, Sir Dudley Bde ail Sir J ohn ok. concern- ing the grants of land in Carolina before and after the asia by the King of the Proprietors’ rights .. is (7.) Of the Law Officers, Sir Philip Yorke and Sir Charles Talbot, on grants that are void for uncertainty .. (8.) Of the Law Officers, Mr. Fane, Sir John Willes, end Sir Dudley Ryder, -on the question of taking lands under old grants from the Pro- - prietors of Carolina (9.) Of the Law Officers, Sir William Garis aid, Sir Samuel Shaghen, on the power of the Crown to alter the tenure of lands in Canada.. (10.) Of the Law Officers, Sir J. Campbell and Sir R. M. Rolfe, as to the appropriation of wild lands in New Brunswick by the ee of »the Colony in return for a Civil List .. i (1L.) Of the Attorney General, Sir Edward Northey, on Escheats - in New Jersey .. (12.) Of the Law Ofivers, Sir Taine Bonet stil Sir ‘Thoraas tvavor, on aha Royal right to Escheats in Virginia .. (18.) Of the Law Officers, Sir R. Raymond and Bir Philip Yorke, on iis ‘King’s right to mines in New Jersey Pe 14.) Of the Law Officers, Sir J. S. Copley and Sir Charles ‘Wotherell, as to the right of the Crown to mines of gold and silver and other minerals in Nova Scotia (15.) Of Mr. Fane, on the King’s right to fizcemins reves in thie aaa (16.) Of the Attorney General, Sir Edward Northey, on the Queen’s Right to Royal Fish at New York... --.. (17.) Of the Law Officers, Sir Philip Yorks and Sir Cherlax Talbot, on the grant by Letters Patent of Felons’ Goods, Fines, and Forfeitures . (18.) Of the Solicitor General, Sir William Thomson, on the King’s Pre- rogative of prohibiting his Subjects from going abroad fe (19.) Of the Attorney General, Sir A. Macdonald, as to how far the Bing -may restrain his Subjects from going abroad 2 (20.) Of the Law Officers, Sir Philip Yorke and Sir Clement Wear, o on Criminal Jurisdiction in the Leeward Islands : (21.) Of the Law Officers, Sir Dudley Ryder and Sir John Stkange, © on the erection of a Court of Exchequer in the Colonies si (22.) Of the Attorney General, Sir Dudley Ryder, on the King’s power te erect Courts of Justice in Newfoundland ., (23.) Of the Attorney General, Sir Dudley Ryder, that the alent eould noe grant power to establish a Criminal Court at Newfoundland but under the Great Seal... “s ws ue Digitized by Microsoft® xili PAGE 180 133 144 156 156 157 158 159 161 161 162 164 164 167 169 170 xiv CONTENTS. PAGE (24.) Of the Law Officers, Sir James Scarlett and Sir N. C. Tindal, on the power of the Crown to create the Office of Master of the Rolls in Canada... es PS by wa a is ee » 172 NOTES .. a mn os os we a as 174-187 CHAPTER VI. On Marria, Law anp Courts MarrtiAt. OPINIONS. (1.) Of the Law Officers, Sir Robert Henley and Hon. Charles Yorke, as to how far the proclamation of Martial Law suspends the functions of the Council .. Pr -- 188 (2.) Of Mr. Hargrave, on an Irish case inyalyang the question of Martial law .. ee za » 189 (8.) On Naval Courts Martial and Admiralty J pacity, sa a 198 (4.) Of the Attorney General, Sir John 8. Copley, on the authority of the Military to take away life in suppression of a riot in the Island of Barbadoes ee 194 (5.) Of the Judge Advocate General, Sir J ohn Beckett, on a », trial ‘by Court Martial during the existence of Martial Law in Demerara.. 196 (6.) Of the Law Officers, Sir John Campbell and Sir R. M. Rolfe, as to the power of the Governor of Canada to proclaim Martial Law - 198 (7.) Of the Law Officers, Sir John Dodson, Sir John Campbell, and Sir R. M. Rolfe, on the liability of foreigners invading Her Majesty’s dominion to suffer the penalties of high treason; and on Martial Law .. o. 199 (8.) Of the Law Officers, Sir John Campbell and Sir R. M. Rolfe, on the establishment of a Court in Canada for the trial of offences com- mitted during an insurrection in which Martial Law had been pro- claimed i o. -- 204 (9.) Of the Attorney General, “Sir R. Bethel, on proclaiming Martial Law in Hong Kong .. a iy re 3s as -- 206 NOTES .. * at oy . 6 we an 207-216 CHAPTER VII. On EXTRA-TERRITORIAL J URISDICTION. (1.) Report by Sir James Marriott, King’s Advocate, on the reference of a Letter of Sir James Wright, His aoe Minister at Venice, by the Karl of Shelburne... ee . 217 OPINIONS. (2.) Of the Law Officers, Sir Philip Yorke and Sir Clement — on a trial for murder committed at sea .. .. 218 Digitized by Microsoft® CONTENTS. XV PAGE (3.) Of the Law Officers, Sir S. Shepherd and Sir R. Gifford, as to the jurisdiction of the Superior Court of New South Wales in case of persons not resident within the territory ; and as to the disability to sue, of prisoners convicted of felony .. 220 (4.) Of the Law Officers, Sir J. 8. Copley and Sir Cc. Wetherell, on fa Foreign Enlistment Act (59 Geo. 3. c. 69) . 221 (5.) Of the Law Officers, Sir Herbert Jenner and Sir N. C. Tindal, as t whether Slaves escaping to a foreign territory could be ee back to a Colony to be there dealt with as Slaves .. 224 (6.) Of the Law Officers, Sir J. Campbell and Sir R. M. Rolfe, as te susie: diction over offences committed in territory outside of the i of Gibraltar es . 224 (7.) Of the Law Officers, Sir ea Servi and a J. Houilly: dint an sanaill on a native ina Colony by British subjects is not triable in the Court of Queen’s Bench in England .. a 225 (8.) Of the Law Officers, Sir J. Dodson, Sir John Homily, and Sir A. E. Cockburn, on the construction of the Statutes 59 Geo. 3, c. 44 (an Act relating to offences committed in Honduras) and 12 & 13 Vict. c. 96 (an Act to provide fqr the prosecution and trial in the Colonies of offences committed within the jurisdiction of the Admiralty) .. 227 (9.) Of the same Law Officers, that British Courts have no jurisdiction in respect of illegal acts committed against emigrants on board Foreign Vessels 228 (10.) Of the Law Officers, Sir 3. D. aiding, Sir F. Thesiger, and Sir F. Kelly, on the same question .. 229 (11.) Of the Law Officers, Sir J. D. Harding, Sir R. ‘Bethell, and ‘Sir H. 8. Keating, that a person charged in a Colony with any offence under 12 & 13 Vict. c. 96- cannot “be sent to England for trial; nor can proceedings of such trial be revised in England + 230 NOUS cw lm it s(t SG CHAPTER VIII. On tar Lex Loct anp Lex Forz. Pp. 239-251. CHAPTER IX, On ALLEGIANCE AND ALIENS. OPINIONS. (1.) Of the Attorney General, Sir Edward Northey, on the question of Alienage, and trading with Her Majesty’s enemies . 252 (2.) Of the Attorney General, Sir Fletcher Norton, as to aihathes she French and Spaniards who remained in the ceded countries after the Peace of 1763 were Aliens or Subjects we QBE Digitized by Microsoft® xvi CONTENTS. (3.) Observations by Sir James Marriott, King’s Advocate, on the case of the inhabitants of Dominica, sent to the Attorney and Solicitor General previous to a consultation with him thereupon (4.) Opinion of Mr. Chalmers on the legal effects resulting from the ac- knowledgment of the iadependencs of the United States .. ate (5.) Discussion on the question, “ Whether inhabitants of the United States, born there before the Independence, are, on coming to this Kingdom, to be considered as Natural-born Subjects?” By Mr. Reeves, Author of the “ History of the English Law” (6.) Opinion of the Law Officers, Sir J. 8. Copley and Sir C. Wetherell, on the status of a Citizen of the United States born before the Peace of 1783, and resident in Canada; and also on the status of his son, born in the United States after that date .. - (7.) Of the Law Officers, Sir Christopher Robinson, Sir J. 8. Copley, atid Sir C. Wetherell, as to the status of Slaves escaping to a British Set- tlement, and as to whether they can be lawfully sent back to the foreign country from which they have escaped si (8.) Of the Law Officers, Sir J. Campbell and Sir R. M. Rolfe, a as 8 to ‘the claims of two persons resident in the, Mauritius before the Cession of the Island to the privileges of British subjects after the Cession (9.) Of the Law Officers, Sir F. Thesiger and Sir FitzRoy Kelly, as to whether an inhabitant of the Mauritius was entitled to be con- sidered a British subject —.. (10.) Of the Law Officers, Sir William Follett and Sir F. Thesiger, that de Crown may bestow the dignity of a Knight Bachelor on an Alien.. (11.) Of the Law Officers, Sir J. Dodson, Sir William Follett, and Sir F. Thesiger, on the naturalization of an alien woman by marriage 7 with a British subject in Gibraltar . (12.) Of the Law Officers, Sir John Dodson, Sir a ear snd Sir a: Romilly, that Aliens may be empowered by a Colonial Legislature to hold Offices of Trust ~ .. (13.) Of the Law Officers, Sir J. Dodson, Sir A. E Cockburn, and Sir W. Page Wood, that a “ Liberated African” does not become, ipso Sacto, a British subject .. * (14.) Of the same Law Officers, that such an “Afrioan, may be comprehended in Treaties within the meaning of 6 & 7 Vict. c. 94 PAGE 286 824 326 326 328 829 829 330 832 332 NOTES .. as a Ee os a 7 833-340 CHAPTER X,. On Extrapition, OPINIONS. (1.) Of the Law Officers, Sir J. Campbell and Sir R. M. Rolfe, as to. the ~” detention and extradition of Spanish Convicts wrecked on the Ba- hama Islands while proceeding under sentence of transportation from the Havannah to Cadiz .. Digitized by Microsoft® 341 CONTENTS. xvii . PAGE (2.) Of the United States Attorney General, Mr. Legare, on the Extra- dition of Criminals 342 (3.) Of the Law Officers, Sir J. Bonifly and Sir A. E. Cockbans, on the Extradition Treaty with France, the Act 6 & 7 Vict. c. 79, relating to Fisheries in the Channel, and on the Jurisdiction of the Royal Court of Jersey % ‘a » , 843 (4.) Of the United States Attorney General, “Mr. Cushing, on the Extradi- tion of Criminals ie as we B44 (5.) Of the same Attorney General, on nition same subject ie . 846 (6.) Of the same Attorney General, on the same subject .. . 853 (7.) Of the same Attorney General, on the same subject . 854 (8) Of the same Attorney. General, on the same subject . _ 856 (9.) Of the same Attorney General, on the same subject 857 (10.) Of the same Attorney General, on the same subject 358 (11.) Of the same Attorney General, on the same subject 359 (12.) Of the same Attorney General, on the same subject 364 (18.) Of the same Attorney General, on the same subject .. 365 (14.) Of the same Attorney General, on the same subject . 366 (15.) Of the Law Officers, Sir F. Thesiger and Sir FitzRoy Kelly, on the : construction of the Treaty of Washington and the Statute 6 & 7 . Viet.c.76 .. « 366 (16.) Of the Law Officers, Sir Ze E. Cockburn and Sir R. "Bethell, on the question of surrendering to the American Consul a person charged with Manslaughter... 367 (17.) .Of the Law Officers, Sir J. D. Havling, Sir FitzRoy ‘Kelly, ond Sir Hugh Cairns, on the surrender by the United States Government of a person charged with being accessory before the fact, in this country, to a murder in France ate iio is ae - 368 NOTES .. a a _ ea vs ae ie 369-374 CHAPTER XI. Ox APPEALS FROM THE COLONIES. OPINIONS. (1. ) Of the Attorney General, Sir Edward Ny ae on the eer of oe from the Colonial Courts a a 875 (2.) Of the same, on a question of Appeal 375 (3.) Of the same, on Appeals from the Admiralty Conrta i in the Colonies 377 (4.) Of the King’s Advocate, Sir Nathaniel Lloyd, on the same subject .. 377 NOTES «<2 = « « “we ww oo S7B-979 Digitized by Microsoft® Xviii CONTENTS. CHAPTER XII. On tHE REVOCATION OF CHARTERS. OPINIONS. (1.) Of Lord Chief Justice Holt, that the King might appoint a Governor of Maryland, in a case of necessity, ni notwithstanding an existing Charter by which Lord Baltimore was appointed Governor « 880 (2.) Of the Law Officers, Sir Edward Northey and Sir 8. Harcourt, that the Queen may resume a Government under a Royal Charter that PAGE had been abused AS 381 (3.) Of the Attorney General, Sir Edward “"Rerley, on ie Queen's re rogative to receive a surrender of the Pennsylvania Charter « 882 (4.) Of the same Law Officer, on the surrender of the Bahama Charter .. 3883 (5.) Of the Law Officers, Sir F. Pollock and Sir William Follett, on a proposed surrender of the Charter of the University of King’s College, in New Brunswick, and the grant of an amended Charter .. - 883 (6.) Of the Law Officers, Sir F. Thesiger and Sir FitzRoy Kelly, as to the revocation of a Royal Warrant, granting the property of a deceased person which had devolved upon the Crown’. 385 (7.) Of the Law Officers, Sir A. E. Cockburn and Sir R. Bethell, as ta power of the Crown to revoke or accept the surrender of a grant of separate Quarter Sessions, made under the Municipal Corporations Act, 5 & 6 Will. 4,0.76 .. sea “s -- 886 NOTES .. 7 ae a a i a e 887-389 CHAPTER XIII. THE CHANNEL IsLANDs. OPINION Of the Law Officers, Sir Dudley Ryder and Sir John ee on the King’s Authority over Guernsey and Jersey i . 3890 NOTES 391-393 CHAPTER XIV. On THE NATIONALITY oF A SHIP, AND OTHER MarTrers RELATING TO SHIPS. OPINIONS. (1.) Of the Law Officers, Sir James Marriott and Sir William De Grey, on the case of an arrest in the Isle of Man on board a ship of war .. 394 (2.) Of the King’s Advocate, Sir James Marriott, on the right of property in a vessel derelict in the ocean (8.) Of the Law Officers, Sir J. Dodson, Sir J. Gurepbell and Sir T. Wilde, on the seizure of a Spanish vessel which had put into a port of Jamaica in distress with five slaves on board 7 oi « 899 395 Digitized by Microsoft® CONTENTS. xix PAGE (4.) Of the United States Attorney General, Mr. Legare, in the case of the Creole, an American vessel, which, under stress of weather, put into port at the Bahamas with slaves on board oe 400 (5.) Of the Law Officers, Sir J. D. Harding, Sir F. hedigeri, anf Sir FitzRoy Kelly, on the seizure of some French vessels at the Gambia 402 (6.) Of the Law Officers, Sir J. D. Harding, Sir A. E. Cockburn, and Sir R. Bethell, as to what constitutes loss of nationality in aship .. 404 (7.) Of the same Law Officers, that indemnity for unauthorized seizure of a foreign vessel in Colonial waters, for contravention of a Conven- tion between Great Britain and a ii country, ought to be os by Great Britain ae 406 (8.) Of the United States Attorney Generel, Mr. Oivhing,. on fhe. oe by the French authorities in the port of Marseilles, of seamen on board an American ship charged with crime a a -- 407 NOTES .. es a oy a a ais i 419-420 CHAPTER XV. On tHe Power oF THE Crown To GRANT ExcLusivE Ricuts orf TRADE. OPINIONS. (1.) Of Sir William Jones, Sir F. Winnington, and Mr. J. King, on the Statute of Monopolies, 21 James 1, c. 3, as to how far an action would lie, in the Barbadoes Courts, for wai es of the African Company 421 (2.) Of the Attorney General, Sir Habett Sevyer, woheercing fntetlapers in the East Indies... 422 (3.) Of Mr. West, Counsel to the Board of Trade, on vais question ‘of ‘ste blishing British manufactures in France, and on the prerogative of the Crown to restrain trade .. 423 (4.) Of the Attorney General, Sir P. Virks, relating to Bhelish subjects being engaged in the East India Company of Sweden we 427 (5.) Of Mr. Fane, Counsel to the Board of Trade, on the privileges of the Russia Company carrying on a trade to America .. 430 (6.) Of the Law Officers, Sir Dudley Ryder and Sir John Steere, on an Act of Georgia about trade with the Indians a 431 (7.) Of the Law Officers, Sir Dudley Ryder and Sir William Mnrtay on a Petition which had been referred to the Privy Council, praying that the Petitioners might be incorporated, and that the Crown would grant to them the property of all the lands they should discover, settle, and plant in North America, adjoining to Hudson’s Bay, not already occupied and settled by the Hudson’s Bay Company, with the like privileges and royalties as were granted to that Company, with the right of exclusive trade aa a es - 4382 NOTES .. ah on i a3 st a = 433-435 Digitized by Microsoft® XX CONTENTS. CHAPTER XVI. On roe Writ or Haseas Corpus. OPINION. Of the Law Officers, Sir J. Campbell and Sir R. M. Rolfe, on certain proceed- ings relating to the issue of a Writ of Habeas Corpus in Canada .. 436 NOTES .. te ws ee ais os sa oe 438-452 PAGE CHAPTER XVII. On Certain Pourrs Renatine To Crrmiat Law. OPINIONS. (1.) Of the Law Officers, Sir C. Robinson, Sir R. Gifford, and Sir J. S. Copiey, on an application by the United States Government, that certain proceedings of outlawry in Canada might be revoked . 453 (2.) Of the Law Officers, Sir J. S. Copley and Sir C. Wetherell, on a Petition presented to the Governor of the Colony of the Cape of Good Hope containing libellous matter, and as to how far it was privileged oe 454 (3.) Of the Law Officers, Sir Herbert J einen Sir C. Wetherell, acd Sir N. C. Tindal, on a trial of Pirates at Malta; on a jury de medietate, and tight of challenge in that case ws 455 (4.) Of the Law Officers, Sir Thomas Denman and Sir Ww. Hans, on ihe tight of Slaves to claim benefit of clergy, and degree of Sy required in an indictment .. 457 (5.) Of the Law Officers, Sir William Home and Sir J hes, Campbell on the power of the Crown to grant a Conditional Pardon... 459 (6.) Of the Law Officers, Sir F. Pollock and Sir W. Follett, on the com- mutation of sentence of Death to Transportation, with consent of the Convict .. 461 (7.) Of the Law Officers, Sir A. E. Godan and Sir R Bethell, that com- mutation of sentence from Transportation to Imprisonment without consent of the Convict is illegal s aie 462 (8.) Of the same Law Officers, that in such a case the dristaal: eitance may be carried into execution a 463 (9.) Of the Law Officers, Sir J. Campbell and Sir R. M. Rolie, ities a witness admitted to give evidence for the Crown cannot refuse to answer questions on the ground that his answers may criminate himself, and that a conviction obtained after such refusal is bad .. 464 (10.) Of the same Law Officers, on the illegality of an ordinance passed by the Governor and Council of Lower Canada, directing certain per- sons tu be transported to Bermuda, and detained there .. « 465 Digitized by Microsoft® CONTENTS. xxi . PAGE (11.) Of the Law Officers, Sir J. Jervis and Sir J. Romilly, on the power of Police Constables to arrest in certain cases without warrant .. 466 12.) Of the Law Officers, Sir A. E, Cockburn and Sir R. Bethell, as to the illegality of the delivery up of Russian Sailors (deserters), and the conveyance of them back to their ship * « §=468 (18.) Of the same Law Officers, as to how far 16 & 17 Vict. c 99, ‘abolish- ing Transportation in certain cases, is in force in the Colonies .. 468 CHAPTER XVIII. On MisceniaNrous SuBJEcTs, (1.) Letter from the Lord Chancellor, Lord Thurlow, to Sir James Marriott, King’s Advocate, on the necessity of Declaration of War before hostilities “ se es a zi a « 471 OPINIONS. (2.) Of the Law Officers, Sir J. Harding, Sir A. E. Cockburn, and Sir R. Bethell, that Her Majesty’s mere Declaration of War with a foreign Power did not place the Ionian Republic in a state of war with that Power; and that it did not appear to be illegal for an Ionian to trade with a country with which Great Britain is at war « 472 (8.) Of the same Law Officers, that the Queen can, by her Declaration of War, place the Ionian Republic in a state of hostility towards another country be 5 i - ATT (4.) On the Right of War, an eory, and fies ee 478 (5.) Of the Attorney General, Sir Charles Pratt, as to he grant of a a Marriage Licence es 479 (6.) Letter from the Lord Chancellor, Lord Thurlow, ta Sir James Marriott, King’s Advocate .. os oa -- 480 APPENDIX. Commissions of Martial Law issued by King Charles I. a - 481 Geoffroy’s Case, in France (1832) ee as we » 483 Mr. Dudley Field’s Argument in McCardle’s Boss ws 491 Case and Joint Opinion of Mr. Edward James, Q.C., and Mr. Fitz- james Stephen, Q.C., on Martial Law with reference to the Jamaica Insurrection. 1866 .. as es 7 a ee - «551 INDEX .. a es oe “ et as 565-572 Digitized by Microsoft® e 2 Digitized by Microsoft® TABLE OF CASES. PAGE Adam (Re) 16, 22, 23, 29 Advocate General of Bengal v. Ranee Surnomoye Dossee 19, 20, 180 AMineas Macdonald’s Case 839 Alivon v. Furnival 239 Allen (Re). 442 v. Kemble 243 v. Waldegrave . ; . 85 Alves y. Hodgson 241 Ames’s Case. ‘ 379 Amsinck v. Barklay . - 181 Anderson (Re) . 878, 452 Anderson v. Hamilton a . 86 Anderson’s Case. ‘ . 873 Anstruther v. Arabin. . . 29 Argent v. Argent 248 Ash v. Rogle ‘ 379 Astley v. Fisher le ai, LO Athol (The) . - , . 85 Atkins v. Smith * Fs - 63 Attorney General v. Briant . 86 v. Chambers . 81 ——. v. Parsons 175 v. Sillem 238 vw. Stewart . 18 -—— of Victoria (Re) 29, 378 Aubert v. Gray . . . 182 Auchmuty v. Mulcaster 825, 336 Auty v. Hutchinson . é . 85 Baltimore’s (Lord) Case 380 Banker’s Case (The) . ., 86 Bank of Australia v. Nias . 24, 84 — of United States v. Mac- kenzie . : 7 > . 861 v, Planters’ Bank of Georgia 361 Barnes’s Case 450 Bartley v. Hodges 244 Barton v. The Queen . 116 PAGE Barwise v. Keppel . 214 Basham v. Lumley 62, 84 Bazett v. Meyer . : . 182 Beaufort (Duke of) v. Mayor of Swansea. : i . 175 Beaumont v. Barrett . . 15, 25, 29 Beckwith v. Philby 468 Beeching (Ex parte) . 446 Beenan’s Case. i : . 450 Bellamont’s (Lord)Case . . 84 Bentinck v. Willink . : 3 19 Bessett (Ex parte) 3873 Bethell’s Case . 450 Bhaeechund v. P. Manikehund 249 Birtwhistle v. Bardill . 248 Blagg v. Sturt. ‘ . 86 Blankard v. Galdy . 12, 19, 63 Blight’s Lessee v. Rochester 336 Bonaparte v. Camden Railroad Company 361 Bowerbank v. Bishop of Tasaaton 29, 62 Bradley v. Arthur. . 81 Brass Crosby’s Case 439, 447, 448 Breese v. Owens . 187 Bristow v. Sequeville . 241 British Linen Company v. Drum- mond . ‘ 249 Brodie v. Barry . x . 248 Brook v. Brook . 22, 246, 247 Broughton v. Jackson é . 85 Brown (Re) 26, 452 Bruce (Re) ; : 336 Bryan v. Arthur. : 5 . 82 Buchanan v. Rucker . . 84 Burdett v. Abbott 195, 447, 448, 449 Burn v. Cole. : ‘ . 63 —— v. Farrer . , . 18 Buron v. Denman ‘85, 86, 242 Bushell’s Case 444, 447, 448, 450 Cagliari (Case of the) . 238 Digitized by Microsoft® Xxiv PAGE 12, 17, 208, 263, 268, 271, 272, 282, 287, 307, 315, 334, 391, 452 . 15, 80, 82 Calvin’s Case Cameron v. Kyte Cammell v, Sewell : . 242 Campbell v. Hall 12, 14, 16, 21, 29, 84, 267, 269, 270, 286 ——-v. Hewlitt . F - 88 ——-v. The Queen . 187 Canadian Prisoners’ Case 442, 444 Cape Breton (Re Island of) 17, 28, 889 Carnatic (Nabob of) v. East India Company : : : . 86 Carpenter v. Thornton e . 84 Carus Wilson’s Case . 440, 443, 444, 447, 450, 451, 452 Cassanova v. The Queen 116 Castrique v. Imrie 242 Catherwood v. Caslon . . 245 Charlton v. Wright . ¥ . 68 Christian v. Cowen ‘ . 879 Clark v. Mullick _ « 9 Clark’s Case : 462 Clarke (In the matter of) 446, 447, 451 Coad v. Coad ‘ : . 248 Cobbett v. Hudson « 445 Colonial Bank v. Warden . DS Constable’s Case. 178, 396 Conway v. Beazley 248 -v. Gray. 182 Conway’s (Countess of) Case 340 Cooke v. Maxwell . : . 86 Coorg (Ex-Rajah of) v. East India Company . ‘ : . 86 Cope v. Rowlands 241 Coppin v. Coppin s 248 Corsica (The Case of the) . 415 Cowan v. Braidwood . , . 84 Craigdallie v. Aikman ‘1 - 62 Craw v. Ramsay . 28, 24, 840, 393 Crawford’s Case . 452 Cremidiv. Powell . . » 21 Creole (The Case of the) . 369, 400, 402, 404, 406 Crowley’s Case . : 444 Crutchley v. Mann 243 Cumming v. Forrester 387 Cunningham v. Collier. . 85 Curtes v. Hutton . 248 Cuvillier v. Aylwin 28, 378 TABLE OF CASES. PAGE Dalrymple v. Dalrymple 239 Davis v. Capper . 3 . 3853 Dawes v. Painter : . 19 De la Vega v. Vianna 239, 249, 250 Derry v. Duchess of Mazarine 340 Devine v. Holloway 29, 82 v. Wilson 176 De Wall’s Case . 340 De Wiitz v. Hendricks 237 450 Deybel’s Case Dickson v. Viscount Combermere 85 Dill v. Murphy . 26, 29 Dobree v. Napier 237 Doe d. Auchmuty v. Mulcaster 325, 336 —- d. Birtwhistle v. Bardill 248 — d. Devine v. Wilson 176 — d. Duroure v. Jones - 839 — d. Stansbury v. Arkwright . 336 —- 4d. Thomas v. Acklam . 325, 336 Donaldson v. Thompson. . 21 Donegani v. Donegani : - 22 Donn v. Lippman 239, 244, 249 Douglas (In matter of) 443, 448, 451 Doyle v. Falconer 26, 29 Drummond’s Case. : . 837 Duroure v. Jones é 339 Dutton v. Howell ‘ ‘ . 84 Eastern Archipelago Company v. The Queen 5 i . 887 East India Company v. Campbell 370 v. Oditchurn Paul x : . 19 —. v. Sandys 180, 184, 433 Elphinstone v. Bedreechund . 86 Ely v. Moule - 450 Evans v. Hutton 25, 233 Ex parte Beeching 446 Besset . 373 — Fernandez . 442 ——- Jenkins . 28, 58, 62 ——- Kraus . 442, 468 - Newton 442 Robertson, In re Go- vernor-General of New South Wales . 2 : ; . 81 Sandilands . 442 ~ Scott 236 ———- Sir Charles Napier ; 86 Digitized by Microsoft® TABLE OF CASES. PAGE 443 Fabrigas v. Mostyn 18, 84, 277, 384 Fairman v.Ives. . . . 86 Falkland Islands Company v. The Ex parte Wideman Queen . 18, 29, 176, 379 Fama (The) ‘ . 14 Fenton v. Hampton . 26 Ferguson v. Fyffe 239 - v. Mahon 34 Fernandez (Ex parte) 442 Fitch v. Weber 339 Flindt v. Scott . . 182 Folliott v. Ogden 242, 336 Foltina (The) ‘ i 4 ed, Forbes v. Cochrane .17, 85, 240, 420 Fortune (The) . 401 Foster v. Jackson 462 Freeman v. Fairlie 18, 19 Frith v. Wollaston 384, 248 Furby v. Newnham 441 Gardiner v. Fell . . 18 General Steam Navigation Com- pany v. Guillou . 244, 249 Geoffroy’s Case . 213 Gibbs v. Fremont. : 243 Gidley v. Lord Palmerston . 85 Gill v. Barron, 4 4 28 Glynn v. Houston 84 Graham v. Barry 29 Grant v. Gould . Griefswald (The) 420 Gumbes’s Case . 16 Haffey v. Haffey 181 Hagedorn v, Bell 21 Halley (The) j 251 Hamilton’s (Duke of) Case . 203 Hammond’s Case 450 Harden v. Bailey 214 Hare v. Nasmyth . 63 Harford v. Morris 245, 247 Haydon v. Gould AT Henderson v. Henderson 384 Henley v. Soper. . . 84,378 Henry (The) 395 Hill v. Bigge ; 80, 84 Hirschfield v. Smith . 3 248 Hobhouse’s Case. = ‘i . 441 Hodge v. Attorney General of Honduras - 29 208, 209, 214 Hodgkinson v. Fernie. Holderness’ (Lord) Case Holman v. Johnson Holmes v. Jennison Hope v. Hope Horne v. Bentinck Hottentot Venus’s Case Huber v. Steiner Hudson v. Ash . ‘ Hudson’s Bay Company Hutchinson v. Gillespie Hyde v. Hyde Imlay v. Ellefsen Indian Chief (The) Industria (The) . Jacobi v. Bannerman . Jenkes’s Case Jenkins (Ex parte) Jephson v. Riera Jersey (Re States of). Jersey Jurats (Re) Jewison v. Dyson Johnstone v. Sutton . Jones v. Danvers Kaine’s Case. Keighley v. Bell. Kemp v. Neville Kennedy v. Trott Kent v. Burgess . Kielley v. Carson Kierzkowski v. Dorion Kimberley’s Case King v. Clerk Koszta’s Case Kraus (Ex parte) Lacon.v. Hooper . Lane v. Cotton . Lang v. Purves . 14, 29, 336 . 88, 176, 179, 187 18, 20, 25, 29 Latour v. Attorney General Lautour v. Teesdale Lebel v. Tucker . Le Caux v. Eden Lee v. Birrell Legat’s Case Leroux v. Brown Leucade (The) . Levien v. The Queen . Digitized by Microsoft® XXV PAGE 85 . 267 239, 241 342 22 86 444 244, 249 . 451 432, 434 . 84 . 241 249, 250 20 899 401 . 438 28, 58, 62 892 392 87 442 346, 350 216, 249 84 . 28 * | 245 28 236 450 . 338 442, 468 . 239 88, 85 29, 62 175 19 243 85 86 387 239 472 379 Xxvi PAGE Lewis v. Owen . i . . 244 Lindo v. Rodney j : . 85 Lindsay v. Duff : « 29 Lindus v. Melrose 176 Lloyd v. Guibert 244 Lolley’s Case 248 Long v. Bishop of Capetown 29, 55, 57, 58, 60 Lopez v. Burslem 238, 249 Lord v. Commissioners of Sydney 175 Lord Advocate v. Hamilton 176 Lord Hobart (The) 420 Low v. Routledge 22 Lubbock v. Potts 18, 29 Lundy’s Case 236 Luther v. Borden F . 218 Lyon v. Colville . ‘ - 63 Macbeath v. Haldemand . . 85 Macdonald v. Lambe . z . 28 Macduff’s Case . . 284 Madrazo v. Willes 242 Magdaléna Steam Nuvisstion Company v. Marten ‘ . 85 Male v. Roberts . ‘i . 242 Manilla(The) .. ; . 2 Manning v. Spooner . < . 63 Marryat v. Wilson 837 Mash’s Case 373 Mason v Attorney General of Jamaica . é 177 Masulipatam (Collector of ) vw. Narrainappah . oa 3 - 177 Mayhew v. Locke .. 450 Mayor of Lyons v. East Telli, Company - 19,177 M’Cardle (In the matter of) 213 M’Carthy v. De Caix. . 248 M’Dermott (Re). . . . 28 M’Donnell’s Case A 453 Melan v, Duke of FitzJames 250 Metzger v. Howard. 850 Mines (The Case of) . : 177 Mittelholzer v. Fullarton . 242 Molyne’s Case 175 Montagu v. Lieutenant-Govemor of Van Viemen’s Land 81, 83 Moore v, Darell . . 248 Mostyn v. Fabrigas , 84, 87 Munroe v. Pilkington . 239, 243 TABLE OF CASES. PAGE Mure v. Kaye 236, 249, 370, 468 Murray v. Burgess 29, 62 Myrtle v. Beaver ‘i : . 85 Napier, Sir Charles (Ex parte) . 86 Napper Tandy’s Case . 871 Natal Land Company v. Good . 29 Natal (Re Lord, Bishop of) 17, 28, 29, 56, 58, 60, 186, 378 ——- (Bishop of) v. Gladstone . 29, 57, 59, 60, 61 —- v. Green 60, 61 Newton (Jix parte) 442 Nicholson v. Mounsey : . 85 Noell v. Robinson. 3 . 63 Norris v. Chambers 179 Northcote v. Douglas . F . 82 Obicini v. Bligh . ‘ g 34 Oliver v. Bentinck. 3 . 85 Russian Steam 18, 231 241 Papayanni v. Navigation Company Pellecatt v. Angell Peninsular and Oriental Steam Navigation Company v. Shand 239, 243 People of New York v. Anson Wing . 344 Perkin "Washeck’s iss 203 Phillips v. Allan ‘ . 244 -¥v, Hyre . , . 84 Picton’s Case. 138, 87 Planché v. Fletcher 241 Pollard (Re). 5 : . 29 Potter v. Brown . 250 Price v. Dewhurst 3 . 248 Priddy v. Rose . ‘ . 85 Quin v. Keefe 244 R. v. Alloo Paroo 379 — v. Amery . 387 — v, Anderson . 235, 236, 420 — v. Azzopardi . 233, 236 — v, Baker ‘ ‘ . 461 — v. Bembridge . : - 88 —v. Berard . 236 —v. Bertrand . : . 879 — v. Brampton . 18, 57, 245 — v. Burdett 215 — v, Butler 387 Digitized by Microsoft® TABLE OF CASES. xxvii PAGE R.v. Capper. 179 — v. City of London . . 887 —v. Clarke. ‘ 29, 81 — v. Cowle 285, 452 — v. Dallimore . 29 — v. De Mattos. ; . 286 — v. Depardo : 236, 420 — v. Desley 420 — v. Dickie 461 —v. Dobson . 88 — v. Dulwich College . 88 — v. Earl Ferrers . 451 — v. Eduljee Byramjee ~ 878 —v. Hyre 15, 21, 88, 180, 208, 211, 212, 218 — v. Flower . 447 — v. Fowler 449, 452 — v. Frost. 215 —v.Furzey . . 214 — v. Gordon (Lord George) . 287 — v. Hardy ‘ . 86 —v. Hastings . 118 —v.Helsham . 236 — v. Holland 88, 89 —v. Hughes . 29, 81, 387 — v. Hutchinson 442 — v, Kindersley 442 — v. Langford . . 214 — v. Lees . 29, 442 — v. Leonard 443 — v, Lewis . . 235 — v. Lopez . 285, 420 — v. Lords Commissioners of Treasury ‘ ‘ ‘ - 86 — v. Lords of the Treasury . 86 — v, Macgregor. 118 — v. Mackintosh 443 — v. Madan 461 —v. Manning . 340 — v. Miller 461 — v, Millis 246 — v. Mookerjee . 379 — v. Morphes . 118 — v. Murphy 29, 379 — v. Neale 215 —v.Pell. . 438 —v. Peltier . . 287 — v. Pinney 213, 214 —v. Sattler - 7 235 — v, Sawyer, 236 PAGE R. v. Serva ‘ 3 3 . 420 — v, Shawl ‘ ‘ 4 . 86 — v, Smith F ; A . 187 —v.Snellor . ‘ ’ . 449 —v,Suddis . 214, 378, 447, 450 —v, Sutton . i ‘ . 179 —v, Symons . 2 . . 870 —v.Thomas . ‘ . . 178 — v. Toole : é - 178 —4, Vangben . a mt oof SS — v, Vint . ; ‘ : . 237 —v. Ward . - s . 179 —v. Watson . P r . 86 —v. Wright . : ‘. . 451 —»v. Zulueta . 3 . 17 Re Adam . . a 16, 22, 23, 29 —Allen . j . s : 442 — Anderson . . 878, 452 — Attorney General of Victoria 29, 378 — Brown ; 2 5 . 26, 452 — Bruce . . z . . 836 — Clarke . * . 446, 447, 451 — Douglas: : . 448, 448, 451 — Governor-General of New South Wales (Ex parte Robert- son). . 81 — Island of Cape Breton ‘17, 28, 389 — Jersey Jurats : 5 . 892 —Kaine- - . . 846, 350 — Lord Bishop of Natal .17, 28, 29, 56, 58, 60, 186, 378 —MDermott . i . . 28 — Nawab of Surat. . 878 — Pollard : : : : . 29 —Rolla . : ‘ ‘ . 82 — Sierra Leone . 5 ‘ . 81 — States of Jersey . 5 . 892 — Ternan ‘ . 117, 372, 443 — Thompson . : : . 445 — Windsor ; , . 878, 448 Rafael v. Verelst fs , . 84 Renaud v. Tourangeau : . 28 Reynolds v. Fenton . j . 84 Rice v. Chute . i‘ 5 . 85 Roberdean v. Rous. ‘5 18 Robertson (Ex parte), Re Ga. vernor-General of New South Wales . a ‘ . 81 Robertson v, Doria ‘ 81 Digitized by Microsoft® xxviii PAGE Robinson v. Bland 241, 242, 248, 244 Rolet v. The Queen Rolfe v. Flower . Rolla (Re) . Rose v. Himeley Rothschild v. Currie . Rouchecouste v. Dupont Rubichon v. Humble . Ruckmaboye v. L. Mottichund . . 18, 18, 28, 245 Ruding v. Smith Russell v. Smyth Sadler v. Robins Sandilands (Ex parte) Santos v. Illidge Scott (Ex parte) v, Lord Seymour Scrimshire v. Scrimshire 84, 116 19, 29 82 238 243 . 29 18, 29 249 34 34 442 241, 242 2386 251 245 Secretary of State in Council of India v. Kammachee Boye Sahaba 86 Sérandat v. Saisse . : Seven Bishops’ Case (The) . Sharples v. Rickard Sheriff of Middlesex’s Case. Sierra Leone (Re) Sill v. Worswick Simpson v. Fogo Smart v. Sanders Smith v. Brown . v. Buchanan 3 v. Cowen (Ex parte) v. Gould . . Snaith v. Mingay Solomons v. Ross Somersett v. Stewart Sommersett’s Case Spanish Sailors’ Case . Spence v. Chadwick . Stanhope’s Case . ; Stansbury v. Arkwright Stewart v. Hoome Sucillon’s Case . . Surat’s (Nawab of) Case Sussex Peerage Case . Sutton v. Sutton Swans (The Case of) . Swift v. Nun 29 86 . 248 447, 449 81 . 248 242, 250 es 14, 242 244 352 242 243 239 . 242 240, 462 441 241 175 336 . 836 356, 857 378 247 336 179 63 Tandy v. Earl of Westmoreland 85, 86 Taylor v. Best . Ternan (Re) 117, 372, 443 85 TABLE OF CASES. PAGE Thomas v, Acklam 825, 336 Thompson (Re) . : . 445 Thomson v. Grant . ‘ - 68 Thorne v. Watkins . - - 63 Tobin v. The Queen . ‘ . 85 Toomes v. Etherington . 179 Tousig’s Case. 338 Tovey v. Lindsay 248 Trotter v. Trotter 248 Tulloch v. Hartley é . 248 Turnpike Company v. Wallace . 3861 United States v. Ferreira 350 --—— v. Holmes 420 ——_-- v. Palmer 420 --——. v. Sharp . 408 Unwin v. Wolseley . 3 . 85 Vallee v. Dumerque . . . 984 Vincent v.Godson . ‘ . 19 Wadeer v. East India Company. 86 Wall v. Macnamara . 84, 87 Wall’s (Governor) Case 86, 87, 214 ‘Wallace v. M’Sweeney ‘ - 28 Warrender v. Warrender . 248, 249 Watson v. King. ‘ - 83 Watson’s (Leonard) Case . 442, 444, 445, 448, 449, 450, 451, 461, 462 Way v. Yally . 84 Webb v. Plumer 239 West v. Baxendale . - 468 Whitfield v. Lord Despencer . 85 Whyte v. Rose . : ds - 68 Wideman (Ex parte) . 443 Wild Ranger (The) . 251 Wilkins v. Despard . - 84 Williams v. Jones . 249 Willis v. Gipps . F ‘ - 81 ‘Wilson v. Marryat . 837 Windsor (Re) , 373, 443 Wolfe Tone’s Case 208, 213 Wolton v. Gavin - 208 Wood’s Case s 175, 444 Woolf v. Oxholm 242, 244 Woolston v. Scott 245 Wriggleworth v. Dallison . 239 Wright v. Fitzgerald . . 218 Wyatt v. Gore . : : - 86 Wynn v. Middleton . : - 449 Wytham », Dutton . . . a4 Yonge (The) 401 Digitized by Microsoft® TABLE OF STATUTES REFERRED TO. PAGE PAGE 2 & 3 Anne, c. 20 208 | 6Geo1c5 . 107 6Anne,c. 7 . ‘ . 82) 7Geo.1,¢.21 . 428 12 Anne, stat. 2, c. 18 > . 8,4 | 11 Geo. 1, c. 29 4 8 Car. 1,¢.1 207, 208 | 2 Geo. 2,¢.21 . 218 16 Car. 1,¢.11. - 60 | 4Geo.2,c. 21 . 336, 339 ————,« 14. 184 | 5 Geo. 2,¢. 7 63 12 Car. 2,¢.18 . 91, 260 | 7Geo.2,¢. 21 . 266 ——,04. 166 | 18 Geo. 2,¢.4 . 266 ——, ¢. 33 . 47 | 20 Geo. 2, ¢. 45. 266 13 Car. 2, st. 1, ¢. 12. 60 | 29 Geo. 2,¢. 16. 166 15 Car.2,c.7 . 91 | 1 Geo. 3, c. 238 . 82 22 & 23 Car. 2, c. 26 . . - 91) 2 Geo. 3,¢. 25 . 266 31 Car. 2, c. 2 487, 439, 441, 451 | 6 Geo. 3,c.12 . » 21 17 Hdw, 2, c. 11 178 | 9 Geo. 8,¢.16 . . . 19 c. 16 ‘ 179 | 12 Geo. 3, c. 11 247 18 Edw. 3, sess. 2, c. 3 433 | 18 Geo. 3, c. 16 84 25 Edw. 3, c. 2 5 . 118 | ——~—e, 21 839 27 Edw. 3, c. 12 262 c. 25 - . 266 c. 16 262 | ————. c. 68. z 380, 34, 187 28 Edw. 3, c. 3 270 | 14 Geo. 3, c. 88 . 21, 49, 52, 154, 205 —— «5 262 | ———— ¢. 21. 839 1 Edw. 6, ¢.3 262 | 16 Geo. 8,¢.5 . 290 cb 262 | 17 Geo. 3,¢.7 . 290 c.12. és 180 | 18 Geo. 3,c.12. 21 2 & 3 Edw. 6, ¢. 37 . é . 262 | 20 Geo. 8, ¢. 20. 266 1 Eliz. c. 1 . 50, 52, 60 | 21 Geo. 3, c. 70. . 80 5 Eliz. c. 6 . 110 | 22 Geo. 3,c.46 183, 258, 290, 299, c. 23 449 301, 305, 809, 312 8 Eliz. c. 3 262 | ———c¢. 53. r 5 - 108 18 Eliz. c. 3 181 | ———— ¢«.75 . 74, 81, 88 18 Eliz. c. 9 262 | 23 Geo. 3, ¢. 28. - 108 -~¢ 15 262 | 23 & 24 Geo. 3,c,4 . 106, 108 c.17 , 262 | ———c14. 105, 106, 109 23 Eliz. c. 5 262 | 24 Geo. 3,¢, 25. 88 27 Eliz. c. 2 85 | 25 Geo. 2,¢.6 . : 2 -ce.19 . 262 | 26 Geo. 3,6, 57. . 89 1 Geo, 1, st. 2, c. 4 . 830 | 80 Geo. 3,¢. 27. . 264 4Geo1,c.11 . 115,116 | 31 Geo. 3, ¢. 81. 21, 21, 52, 153, —c. 12 , 8,4 154, 155, 825, 466 Digitized by Microsoft® XXX PAGE 33 Geo. 3,¢.4 . : . 181 ———_ . 52 : , 89 36 Geo. 3, c. 57 235 387 Geo. 3, c. 11 212, 213 c. 97 . 264,298, 299, 321,336 —— 119 : . 63 c. 142 14, 80 389 Geo. 3, ¢c. 87 . 102, 105, 106, 283 39 & 40 Geo. 3, c. 67 . 106 —-— 6. 79 80, 63, 187 40 Geo. 3, c. 88 - 106 42 Geo. 3, c. 85 i 86, 226 43 Geo. 3,c.6 . : ‘ . 54 — c. 117 : . 212 46 Geo. 3, c, 54 ‘ 97, 98, 234 49 Geo. 3, c. 17 5 - 96 538 Geo. 8, c. 155 20, 30, 62 54 Geo. 8, ce. 15. ; 21, 220 c. 61. ‘i a . 4 55 Geo. 3, c. 84. < ‘ - 68 ——_. ¢. 184 177 56 Geo. 3, c. 86. - 181 c. 100 439, 440, 444 57 Geo. 3, o. 53 . 77, 235 59 Geo. 8, c. 88 . 405 — oc 44. 3 227, 2384 —— «54. i Pa c. 69. 221, 237, 238 c. 121 451 1 Geo. 4,¢.90 . 102 1&2 Geo4,¢.66 . 434 3 Geo. 4, ¢. 83 . ‘ : . 82 ——-c. 110 102, 103 4Geo.4,c 71. 187, 379 —ocl113.. ; 117 5 Geo. 4,0. 67 . ‘ “3 - 97 ——c84. ; . 460, 462 ——.118. 81, 224, 826 6 Geo. 4, ¢. 50 . . 456 9 Geo. 4,¢. 83 . ‘ ‘9, 69, 235 10 Geo. 4, c. 22 . z a) 2 11 Geo. 4 & 1 Will. 4, c. 55 . el 89 Hen. 6, c. 34 ; ; . 88 14 &15 Hen. 8,c.4 . 296, 319 23 Hen. 8, c. 16 262 25 Hen. 8, c. 13 262 —--—.«. 19 ‘ . 60, 378 28 Hen. 8, c. 11 ‘ js . 48 ——_ 6 15 102, 105, 115, 116, 117, 238, 420 TABLE OF STATUTES REFERRED TO. PAGE 31 Hen. 8,¢.8 . 180 —-— ¢. 18 387 32 Hen. 8, c. 18 262 c. 19 262 33 Hen. 8,07 . 262 —-— c. 23 168 35 Hen. 8,c.4 . 262 3 Jac. 1, ¢. 4 839 4Jacl,a1 . A 181 12 & 18 Jac. 1, c. 2 : 101, 105, 107, 108, 109 21 Jac. 1, c. 2 . 19 ——-«38 . 421, 484 —_——-c.16. 19 1M.c.6. : : 3 1&2 Ph. ME, cc 8 168, 262 5 Rich. 2, c. 2 164, 181 13 Rich. 2,¢.5 . 91 1 Vict. c. 2 : . 175 c. 9 ‘ 205, 487, 465 1 & 2 Vict. c. 45 443 c. 60 9 2 Vict. c. 3 5 205 2 & 8 Vict. c. 41 19 — c. 47 467 —--— ¢. 52 a . 893 3 & 4 Vict. c. 85 21, 27, 52, 73 ——_— c. 62 27 —————. c. 86 53 4&5 Vict. c. 6 22 5 & 6 Vict. c. 12 . 451 —- c. 45 22, 392 —--—_ ¢. 47 393 —_-—- c. 61 . 9, 27 —--—— ¢. 76 27 -—— c, 120 27 6 Vict. c. 12 179 c. 22 ‘ . 23 6 & 7 Vict. c. 13 20, 25, 28 —- c. 88 . 3878 —--—— ¢. 75 ; . 848, 378 —--——- ¢. 76 351, 366, 367, 372, 874 —-—c. 79 843, 344 ——--——- c. 80 . 236 —--— ¢. 94 282, 833 7 & 8 Vict. c. 2 234, 420 ——-—- c. 66 329, 3389, 340 —- c. 69 378 —--— 6. 74 27 Digitized by Microsoft® TABLE OF STATUTES REFERRED TO. 8 & 9 Vict. c. 88 ——-——. «. 89 c. 120 9 & 10 Vict. c. 35 c. 95 10 & 11 Vict. c. 44 c. 83 11 & 12 Vict: c. 20 c. 42 12 & 18 Vict. c. 29 —_——_—- ¢. 91 c. 96 18 & 14 Vict. c. 59 14 Vict. c. 5 14 & 15 Vict. c. 83 15 Vict.c3 . 15 & 16 Vict. c. 39 — ce. 72 16 Vict. c. 4 16 & 17 Vict. c. 95 — — ¢. 99 17 & 18 Vict. c. 104 . —_——_— «118. 18 & 19 Vict. c. 54 ———_— ¢, 55 c. 63 ce. 91 20 & 21 Vict. c. 53 21 & 22 Vict. c. 99 —_——_— 0. 106. ——— 6109. 22 & 23 Vict. c. 12 c. 13 23 & 24 Vict. c. 88 24 & 25 Vict. c. 44 25 Vict.c. 11. 25 & 26 Vict. c. 20 —_—_—_——-c. 48 26 Vict. c. 24 26 & 27 Vict. c. 6 ——— ¢, 24 —_——----— c. 84 e«121 . c. 67 . ce. 100 . c. 104 . PAGER 402 403, 405 » B72 27, 214 187 . oF 331, 340 181 4.» $8 403, 405, 406 230 . 29, 81, 97, 98, 227, 230, 231, 234, 393 27 392 378 385 174 27 . 28 32, 177 461, 469 234 27 27 27 392 235 27 Lo. BT 32, 84, 177 177 21 27 234 25 ae; 31, 32 238, 235 187 27 452 27 84 22 116 24 XXxi PAGE 28 Vict. c. 5 28 -c.17 82 ——o18 . . 381 28 & 29 Vict. c. 63 24, 26 —-- c. 64 24 29 Vict.c. 12 . 28 29 & 30 Vict. c. 65 22 -—— ¢. 67 27 —--——— 0,74. 27 —- «115. . 27 80 Vicia 8. 27, 30 30 & 81 Vict. c. 45 22, 116 —~——.--——¢. 124. 235, 874 31 & 82 Vict. c. 87 22, 398 ce. 105 . 388 1W.&M.c. 2 454 c. 80 - 177 ——-— sess. 2, c. 2 60, 207 —-—— 0.4 207 2 W. & M. sess, 2, c. 2 110 —_-—- c. 8 887 5W.&M.c.6. . 177 7&8 Will. 3,¢.22 . 21, 92 9 & 10 Will. 8, c. 44 429, 434. 10 & 11 Will. 8, c. 25 235 11 & 12 Will. 3,¢.7. 115, 116, 219 -- c. 12 86 12 & 13 Will. 38, c. 2 82, 330 ——. c. 12 86 1 Will.4,c.4 . 72 ec. 25 174 3 & 4 Will 4, c. 4 212 —_———— 6. 27 . . 893 co 41. 61, 878 —o 51. 393 5D. . « 21 ————-—— 6.85 . 12, 28, 81, 34, 62, 63, 484 ——__— 6. 93 . 25, 232 4 Will. 4, ¢. 95 : . 9, 70 4&5 Will. 4,¢ 386 . 234, 235 5 Will. 4, ¢. 9 : . 462 5&6 Will. 4,654 . 247 ————_——-¢. 62 . 21 ———o.76 . 386 6&7 Will. 4,¢.57 . 236 7 Will. 4 & L Vict. c. 88 117 Digitized by Microsoft® INDEX TO NAMES OF LAWYERS WHOSE OPINIONS ARE GIVEN IN THIS WORK. PAGE Abinger, Lord (Sir James Scarlett) . : ‘ . 6, 69, 172 Arnold, J. H. . : , ‘ . 108,110 Atherton, ‘Sir William . : ‘i : 2 ‘ . 3873 Beckett, Sir John : : : : : : . 196 Cairns, Lord ‘i : : 79, 238, 368 Camden, Earl (Sir Ghasies Pratt). ‘ ‘ ; é 1, 479 Campbell, Lord . 7, 8, 9, 10, 50, 51, 70, 72, 73, 156, 198, 199, 204, 224, 326, 341, 399, 436, 459, 464, 465 Chalmers, George : ‘ ; ‘ . 207 Chelmsford, Lord (Sir F. Thesiser) . 52, 54, 229, 328, 329, 366, 385, 402 Cockburn, Lord Chief Justice . 11, 25, 76, 77, 97, 227, 228, 382, 348, 367, 386, 404, 406, 462, 463, 468, 472, 477 Cooke, Sir John . ‘ : : 91, 93 Cranworth, Lord (Sir R. M. Rolfe) . ts 8, 9, 50, 51, 70, 72, 156, 198, 199, 204, 224, 826, 341, 436, 464, 465 Cushing, C. : ? : J : : 344-366, 407 Denman, Lord . é ; * 5 : 3 . 457 Dodson, Sir John . 50, 52, 73, 96, 97, 199, 227, 228, 329, 330, 332, 399 Fane, Francis. : : : . 94, 152, 161, 480 Follett, Sir William Webb ; 51, 73, 74, 96, 329, 383, 461 Foster, J. Leslie . f ‘ . : z : . 99 Garrow, Sir William. ; ; ‘ ‘ . 4, 68, 153 Gifford, Lord ‘ ‘ : : : . 70, 95, 220, 453 Digitized by Microsoft® INDEX TO NAMES OF LAWYERS. xxxiii PAGE Grantley, Lord (Sir Fletcher Norton) . : . 114, 253 Harcourt, Lord . : : . ; . 381 Hardwicke, Earl (Sir Philip Yorks) . 2, 86, 144, 151, 158, 162, 167, 218, 427 Harding, Sir John D. 54, 229, 230, 368, 402, 404, 406, 472, 477 Hargrave, Mr. . : i . 189 Hatherley, Lord (Sir Willian Page Wood) eke . 3832 Hawles, Sir John . . , : f ‘ Z 64, 66 Hay, Sir George ‘ : G : : . . 114 Holt, Sir John : ‘ ; : : ; . 880 Horne, Sir William. ‘ ‘ ‘ i . 7, 457, 459 Jenner, Sir Herbert .. j : : : . 224, 455 Jervis, Sir John . ‘ j : : . 75, 225, 330, 466 Jones, Sir William 3 ‘ ‘ ‘ 3 ; 421 Keating, Sir Henry. : ‘ 7 8, 230 Kelly, Sir FitzRoy . 52, 54, 229, 328, 366, 368, 385, 402 King, Sir John . 3 § 4 : é : . 421 Legare, H.'S. . ‘ ‘ : : ‘ . 3842, 400 Lloyd, Sir Nathaniel . ‘ : : ‘ . . 37 Lloyd, Sir Richard : : : ’ : ; oA Lutwyche, Thomas . ; . : . 65 Lyndhurst, Lord (Sir John Coplay}. 48, 70, 95, 99, 159, 194, 221, 236, 324, 326, 453, 454 Macdonald, Sir Archibald : F : : . 164 Mansfield, Lord (Sir William Murray) . . 183, 145, 432 Marriott, Sir James. . 44, 198, 217, 255, 394, 395, 478 Northey, Sir Edward . 35, 42, 43, 113, 119, 156, 161, 252, 375, 377, 381, 382, 383 Northington, Earl of (Sir Robert Henley) ‘ ‘ 2, 188 . Plunket, Lord . ‘ : ‘ : : ? . 99 Pollock, Sir Frederick . ; : 51, 78, 74, 96, 388, 461 Raymond, Lord . ‘ ; : ‘ : : . 158 Reeve, Sir Thomas z d ‘ ‘ : é . 65 Reeves, John : : : ; ; ; : . 286 Robinson, Sir Christopher . 4, 46, 48, 49, 70, 94, 95, 108, 110, 326, 453 Romilly, Lord. : 75, 97, 225, 227, 228, 382, 843, 466 Digitized by Microsoft® xxxiv INDEX TO NAMES OF LAWYERS. PAGR Ryder, Sir Dudley . 188, 145, 149, 152, 169, 170, 172, 3890, 431, 482 St. Leonards, Lord (Sir Edward ae 69 Sawyer, Sir Robert ; . 422 Shepherd, Sir Samuel 4, 68, 158, 220 Somers, Lord 157 Stainsby, J. A. 90 Strange, Sir John Talbot, Lord : Thomson, Sir William . Thurlow, Lord Tindal, Sir Nicolas Trevor, Sir Thomas Truro, Lord (Sir Thomas Wilde) Twiss, Horace. Walsingham, Lord (Sir William de Grey Wearg, Sir Clement : West, Richard 2 Westbury, Lord (Sir Richard Bethell) 149, 169, 390, 431 144, 151, 162 113, 119, 164 471, 480 6, 172, 224, 455 64, 66, 157 . 10, 73, 399 . 99 8, 894 36, 167, 218 1, 16, 66, 130, 423 i, 25, 76, 77, 78, 206, 230, 867, 373, 386, 404, 406, 462, 463, 468, 472, 477 Wetherell, Sir Charles . . 48, 99, 159, 221, 3824, 326, 454, 455 Willes, Sir Edward 3 Willes, Sir John . 67, 152 Winnington, Sir F. 421 Yorke, Hon. Charles Digitized by Microsoft® 1, 2, 114, 188 SHORT BIOGRAPHICAL NOTICES or DECEASED LAWYERS WHOSE OPINIONS ARE GIVEN IN THIS WORK. Sir John King, Treasurer of the Inner Temple, 1675. Sir William Jones, Solicitor General, 1673; Attorney General, 1675. Sir Robert Sawyer, Attorney General, 1681, ‘nd again 1689 ; died, 1692. : Sir John Holt, born, 1642; Recorder of London, 1686 ; King’s Serjeant, 1686 ; Lord Chief Justice, 1689; died, 1710. Lord Somers, born, 1652; Solicitor General, 1689; Attorney General, 1692; Lord Keeper of the Great Seal, 1693 ; Lord Chan- cellor, 1697, with the title of Lord Somers; Lord President of the Council, 1708, which office he resigned in 1710. He died in 1716. Lord ‘Trevor, born, 1659; Solicitor General, 1692; Attorney General, 1695; Chief Justice of the Common Pleas, 1701; . Lord Privy Seal, 1726: ; President of the Council, 17380; died, 1730. Sir John Hawles, Solicitor General, 1635 ; died, 1702. In 1680, Sir John Hawles published his tracts on Englishmen’ 8 eve Sir John Cooke, King’s Advocate,. 1702. Sir Edward Northey, Attorney General, 1701; cecal 1710; died, 1723. Lord Harcourt, born, 1660; Solicitor General, 1702; Attorney General, 1707; reappointed, 1710; Keeper. of the Great Seal, 1710; Lord Chancellor, 1712; died, 1727. - Sir James Montagu, Solicitor General, 1707 ; Attorney General, 1708 ; Baron of the Exchequer, 1714; one of the Commissioners of the Great Seal, 1718; Lord Chief Baron, 1722; died, 1728. Lord Raymond, son of Sir Thomas Raymond, one of the Justices of the King’s Bench, born, 1673; Solicitor General, 1710 ; Attorney General, 1720; one of the Justices of the King’s Bench, 1724; Lord Chief Justice, 1725 ; a Commissioner of the Great Seal, 1725 ; died, 1733. Digitized by Microsoft® d Xxxvi BIOGRAPHICAL NOTICES. Str William Thomson, Recorder of London, 1714; Solicitor General, 1717; Cursitor Baron, 1726; a Baron of the Exchequer, 1729; died, 1739. ; Richard West, Counsel to the Board of Trade; in 1718, Chancel- lor of Ireland; died, 1726. Francis Fane succeeded Mr. West as Counsel to the Board of Trade in 1725, and resigned that office in 1746. Sir Clement Wearg, Solicitor General, 1723; died, 1726. Earl Hardwicke (Philip Yorke), born, 1690; Solicitor General, 1720; Attorney General, 1724; Lord Chief Justice, 1733; Lord Chancellor, 1737 ; died, 1764. Sir Charles Talbot, Solicitor General, 1726; Lord Chancellor, and created Lord Talbot, 1733; died, 1737. Sir Thomas Reeve, Justice of the Pleas, 1733; Chief Justice of the same Court, 17386; died, 1737. Thomas Lutwyche, King’s Counsel, died, 1734. He entered the House of Commons in 1710, and sat in it till his decease. Sir Dudley Ryder, Solicitor General, 1733; Attorney General, 1737; Lord Chief Justice, 1754; died, 1756. Sir John Strange, Solicitor General, 1737; Recorder of London, 1739; Master of the Rolls, 1750; died, 1754. Earl Mansfield (William Murray), born, 1705 ; Solicitor General, 1742; Attorney General, 1754; Lord Chief Justice, 1756; died, 1793: Earl of Northington (Robert Henley), Attorney General, 1756; Keeper of the Great Seal, 1757; Lord Chancellor, 1761 ; created Baron Henley, 1760; Earl of Northington, 1764; Lord President of the Council, 1766; died, 1774. The Hon. Charles Yorke, born, 1722; Solicitor General, 1756; Attorney General, 1761; again, 1765; Lord Chancellor, 1770; died, 1770. Sir Richard Lloyd, Solicitor General, 1754; a Baron of the Exchequer, 1759; died, 1761. Lord Grantley (Fletcher Norton), born, 1716; Solicitor General, 1761; Attorney General, 1763; Chief Justice in Eyre, 1769; Speaker of the House of Commons in 1770, until 1780; created Lord Grantley, 1782; died, 1789. Lord Walsingham (William De Grey), Solicitor General, 1763 ; Digitized by Microsoft® BIOGRAPHICAL NOTICES. xxxvii Attorney General, 1766; Chief Justice of the Common Pleas, 1771; created Lord Walsingham in 1780; and died, 1781. Sir Edward Willes, Solicitor General, 1766 ; one of the Justices of the King’s Bench, 1768. Sir Archibald Macdonald, born, 1746; one of the Judges for Wales in 1780; Solicitor General, 1784; Attorney General, 1788 ; Chief Baron of the Exchequer, 1793; created a Baronet, 1813; died, 1826. _ Str James Marriott, civilian, born, 1731; Master of Trinity Hall, Cambridge. In 1764, he was appointed the King’s Advocate. He was appointed Judge of the High Court of Admiralty in the room of Sir George Hay: resigned in 1798, and died in 1803. Sir John Willes, born, 1685; Attorney General, 1734; Chief Justice of the Common Pleas, 1737 ; died, 1761. Earl Camden (Charles Pratt), born, 1713; Attorney General, 1757; Chief Justice of the Common Pleas, 1762 ; Lord Chancellor, 1766; died, 1794. Lord Thurlow (Edward), born, 1732 ; Solicitor General, 1707 ; Attorney General, 1771; Lord Chancellor, 1778 ; died, 1806. Chalmers, George, born, 1742; clerk to the Privy Council, 1786; died, 1825. Sir Christopher Robinson, born, 1767; King’s Advocate, 1805 ; Judge of the High Court of Admiralty, 1828; died, 1833. Sir Nicolas Conyngham Tindal, born, 1776; Solicitor Ge- neral, 1826; Chief Justice of the Common Pleas, 1829 ; died, 1846, Lord Abinger (James Scarlett), born, 1769; Attorney General, 1827; Lord Chief Baron, 1834; died, 1844. Lord Lyndhurst (John Singleton Copley), born at Boston, U-S., 1772; Chief Justice of Chester, 1818; Solicitor General, 1819; Attorney General, 1824; Master of the Rolls, 1826; Lord Chan- cellor, 1827; Lord Chief Baron, 18380; Lord Chancellor the second time, 1834; the third time, 1841 ; died, 1863. Lord Gifford (Robert), born, 1779; Solicitor General, 1817; Attorney General, 1819 ; Chief Justice of the Common Pleas, 1824; Master of the Rolls, 1824; died, 1826. Lord Denman (Thomas), born, 1779 ; Common Serjeant, 1822; Attorney General, 1830; Lord Chief Justice, 1832; died, 1854. Lord Campbell (John), born, 1781; Solicitor General, 1832 ; Digitized by Microsoft® XXXViii BIOGRAPHICAL NOTICES. Attorney General, 1834; Lord Chancellor of Ireland, 1841 ; Chan- cellor of the Duchy of Lancaster, 1846; Lord Chief Justice of England, 1850; Lord Chancellor, 1859; died, 1861. Lord Truro (Thomas Wilde), born, 1782; Solicitor General, 1840; Attorney General, 1841, and again, 1846; Chief Justice of the Common Pleas, 1846 ; Lord Chancellor, 1850; died, 1855, Lord Cranworth (Robert Monsey Rolfe), born, 1790; Solicitor General, 1834; again, 1835; Baron of the Exchequer, 1839; one of the Commissioners of the Great Seal, 1850; Vice-Chancellor, 1850; Lord Justice, 1851 ; Lord Chancellor, 1852 ; a second time, 1865; died, 1868. Sir William Horne, born, 1774; Solicitor General, 1882; At- torney General, 1832; died, 1860. Sir Charles Wetherell, born, 1770; Solicitor General, 1824; Attorney General, 1826; died, 1846. Sir Samuel Shepherd, born, 1761; Solicitor uaa 1814 ; Attorney General, 1817; Chief Baron of Court of Exchequer in Scotland, 1819; died, 1841. Str Herbert Jenner, Queen’s Advocate; Judge of Prerogative Court, and Dean of Arches Court; died, 1852, Str John Dodson, born, 1780; Queen’s icoeate 1834; J aes of Prerogative Court and Dean of Arches Court, 1852; died, 1858, Sir William Webb Follett, born, 1798 ; Solicitor General, 1834, and again, 1841; Attorney General, 1844; died, 1845. | Sir John Jervis, born, 1802; Solicitor General, 1846; Attorney General, 1846 ; Chief Justice of the Common Pleas, 1850 3 died, 1856. Sir William Atherton, born, 1806; Solicitor General, 1859 ; Attorney General, 1861; died, 1864. Stir John Dorney Harding, born, 1809 ; Queen’s Advocate, 1852; died, 1868. Digitized by Microsoft® CASES AND OPINIONS oN CONSTITUTIONAL LAW. CHAPTER I. ON THE COMMON LAW AND STATUTE LAW APPLICABLE TO THE COLONIES. (1.) Opinion of Mr. WEst, Counsel to the Board of Trade (afterwards Lord Chancellor of Ireland), that the Common Law of England is the Common Law of the Colonies. 1720. The common law of England is the common law of the plan- tations, and all statutes in affirmance of the common law passed in England, antecedent to the settlement of a colony, are in force in that colony, unless there is some private Act to the contrary ; though no statutes made since those settlements, are there in force, unless the colonies are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him as the nature of things will bear. (2.) Jornt Opinion of the Attorney and Solicitor General, Sir Cuartes Pratt and Hon. Cuartes Yorxg, that English subjects carry with them English laws. In respect to such places as have been or shall be acquired, by treaty or grant, from any of the Indian Princes or Governments, your Majesty’s letters patent are not necessary; the property of the soil vesting in the grantees by the Indian grants, subject only to your Majesty’s right of sovereignty over the settlements, as English Digitized by Microsoft® S 2 CASES AND OPINIONS ON CONSTITUTIONAL LAW. settlements, and over the inhabitants, as English subjects, who carry with them your Majesty’s laws wherever they form colonies, and receive your Majesty’s protection, by virtue of your royal charters. C. Prart. C. Yorke. (3.) Oprnton of the Attorney General, Str Paiwip Yorks, as to the extension of the Statute Law to a Colony. 1729. Quzre.—Whether such general statutes of England as have been made since the date of the Charter of Maryland, and wherein no mention is made of the plantations, and not restrained by words of local limitation, are, or are not, in force, without being intro- duced there by a particular Act of their own? Opinion.—I am of opinion that such general statutes as have been made since the settlement of Maryland, and are not, by ex- press words, located either to the plantations in general, or to the province in particular, are not in force there, unless they have been introduced and declared to be laws, by some Acts of Assembly of the province, or have been received there by long uninterrupted ‘usage or practice, which may import a tacit consent of the lord proprietor and the people of the colony, that they should have the force of a law there. P. Yorke. By stat. 25 Geo. 2, c. 6,8, 10, it appears that the Legislature considered usage as sufficient to have extended an Act of Parlia- ment to the colonies. (4.) Joint Opinion of the Attorney and Solicitor General, Sir Rosert Henry, and Hoy. Coaries YorkE, as to how far subjects emigrating carry with them the Statute Law. 1757. My Lorps,—In obedience to your Lordships’ commands, signi- fied to us by Mr. Pownall, by letter dated April 1st, 1757, accom- panied with an enclosed letter and papers, which he had received from Jonathan Belcher, Esq., Chief Justice of his Majesty’s colony of Nova Scotia, relating to the case of two persons convicted in the courts there, of counterfeiting and uttering Spanish dollars and pistareens, and requiring our opinion, in point of law, thereon; we have taken the said letters and papers into our consideration, and find that the question upon which the case of those two per- Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 3 sons convicted of high treason depends, is this: Whether ‘the Act -of Parliament, 1 Mar. c. 6, entitled “An Act that the counter- feiting of strange coins (being current within this realm), the Queen’s sign-manual or privy seal, to be adjudged treason,” extends to Nova Scotia, and is in force there, with respect to the counter- feiting Spanish dollars and pistareens in the said province? And we are of opinion, first, that it doth not; for that the Act is expressly restrained to the counterfeiting of foreign coin current within this realm, of which Nova Scotia is no part. Secondly, we are of opinion that the proposition adopted by the Judges there, that the inhabitants of the colonies carry with them the statute laws of this realm, is not true, as a general proposi- tion, but depends upon circumstances: the effect of their Charter— usage—and Acts of their Legislature; and it would be both incon- venient and dangerous to take it in so large an extent. And thirdly, we are of opinion that the offence can only be con- sidered as a high misdemeanor, unless there are any provisions in any charter granted to that province, which make it a greater offence, to which we are entirely strangers. R. Hentey. May 18, 1757. C. YORKE. (5.) Joint Opinion of the Attorney and Solicitor General, Siz Wititiam De Grey and Sir Epwarp WILLES, on the extension of Acts of Parliament to the Colonies, when they are mentioned generally, as dominions of the Crown. 1767. May iT PLEASE your Lorpsuips,—In obedience to your Lord- ships’ commands, signified to us by Mr. Pownall’s letter of the 12th of June, that we would take into our consideration an Act of Parliament, passed in the 12th of Queen Ann,, stat. 2, c. 18, en- titled, “ An Act for the preserving of all such ships and goods thereof which shall happen to be forced on shore upon the coasts of this kingdom or any other of Her Majesty’s dominions;” also, one other Act of Parliament passed the 4th of Geo. 1, c. 12, entitled “An Act for enforcing and making perpetual an Act of the 12th year of her late Majesty, entitled ‘An Act for preserving all such ships and goods thereof as shall happen to be forced on shore or stranded upon the coasts of this kingdom or any other of His Digitized by Microsoft® Ba 4 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Majesty’s dominions,’ and for inflicting the punishment of death on such as shall wilfully burn and destroy ships;” and that we would give our opinion whether the said Acts do extend to, and are in force in, his Majesty’s colonies and plantations in America ; we have taken the same into our consideration, and are of opinion that as the title of the Act of the 12th of Ann. stat. 2, c. 18, expressly imports to be “An Act for preserving ships and goods thereof forced on shore, or stranded upon the coasts of this kingdom or any other of Her Majesty’s dominions,” and the enacting part has words extending to her Majesty’s dominions in general, the said Act of the 12th of Ann. extends to and is in force in his Majesty’s colonies and plantations in America, notwithstanding the special promulgation of the law; and some other provisions in it are applicable only to this kingdom. We are likewise of opinion that so much of the Act of 4th Geo. 1, c. 12, as declares the 12th of Ann. to be perpetual, extends to America. But the third clause of. that Act, which introduces a new crime, by a provision altogether independent of the former part of the Act, and made to render an Act of the Ist of Ann. more effectual, we are inclined to think, does not extend to his Majesty’s colonies and plantations in America, that clause being expressed in general terms, without any reference to the colonies ; and the 11th of Geo. 1, c. 29, s. 7, which directs the mode of prosecution of those offences, when committed within the body of any county of this realm, or upon the high seas, making no men- tion of the manner of trial, if such offences should be committed in any of his Majesty’s plantations or colonies in America. W. De Grey. June 25, 1767. E. WILLEs. (6.) Joint Opinion of the King’s Advocate, Str Curis- TOPHER Rosinson, and the Attorney and Solicitor General, Sir Wiiiiam Garrow and Str Samurt SHEPHERD, as to the powers of Government vested in the Crown with respect to the Colony of Berbice. 1817. My Lorp,—We are honoured with your Lordship’s commands of the 27th ultimo, transmitting the charter of the colony of Ber- bice, being the conditions on which their High Mightinesses the Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 5 States-General have granted permission to the Directors of the colony of Berbice to open a free trade and navigation to the said colony for all the inhabitants of the United Netherlands; as also to deliver lands already cultivated or not on equitable terms. And your Lordship is pleased to request that we would take the same into consideration, and report to your Lordship our opinion, whether his Royal Highness having found it necessary to dismiss the members of the present Council of Government, it is compe- tent to his Royal Highness to direct, by an Order in Council, the manner in which another Council of Government should be formed, or whether his Royal Highness is still bound to require the late members to furnish names of other persons from which to make an election of their successors; calling our attention to the cireumstance that the Berbice Association (the former directors of the colony) having been abolished previous to the surrender of the colony to his Majesty’s arms, and the whole power of the directors having been at that time vested in the Government of Holland, his Royal Highness has since exercised in the colony authority both of the States-General and of the directors of the colony ; and further calling our atten- tion to the additional regulations laid down by the States-General in their resolve of the year 1780, altering in certain particulars the original charter under which the colony was established. In obedience to your Lordship’s directions, we have considered the same, and, adverting to the charter and the capitulation, we are of opinion that the full powers of Government are vested in the Crown by the conquest, and that his Royal Highness the Prince Regent having found it necessary to dismiss the present Council, the members so discharged would not be entitled to nominate their successors, as the 21st Article of the Charter, if it is adopted as the rule of Government, would not be applicable to such a case. The original mode of nomination might be used if it was deemed expedient, but we are of opinion that it would not be obligatory, and that his Royal Highness the Prince Regent might direct by Order in Council the manner in which another Council of Govern- ment should be formed. C. RoBInson. Doctors’ Commons, April 22, 1817. W. Garrow. S. SHEPHERD. Digitized by Microsoft® 6 CASES AND OPINIONS ON CONSTITUTIONAL LAW. (7.) Jornt Opinion of the Attorney and Solicitor General, Sir James Scarterr and Sir N. C. Trnpat, on certain inquisitorial powers claimed by the House of Assembly in Antigua. 1828. We presume we are not called upon to consider the abstract question how far a Legislative Assembly in the colonies, without any original power given to them by their charter, or any course of usage and practice to support it, can exercise such inquisitorial powers, and enforce them by such means as are within the undis- puted privilege of the English House of Commons. But conceiving the fact to be, that some analogous powers have been recognised in practice in the island of Antigua, and may be in certain cases essential for the purposes of legislation, we think it would not be expedient, on an occasion like the present, to call them in question. And we see no reason why the Attorney General of the island should refuse his attendance at the bar of the House of Assembly, or should decline answering any questions put to him, excepting such as may occasion disclosures which it would be inconsistent with the duty of his office to make, or which may have a tendency to criminate himself. It appears, however, to be unnecessary to dwell more largely on these grounds of exception, as the House of Assembly have by their 5th and 6th Resolutions expressly dis- claimed their intention of breaking in upon either. In case it should be thought necessary, upon grounds which may have occurred in the island, but which we do not comprehend, to bring the question to a judicial determination, the proper course will be by an action of trespass against the party who makes the arrest under the Speaker’s warrant; in which case the powers of the House, both in general and as applied to the particular instance, may be discussed and determined on an appeal to the King in Council, the facts of the case being set out either upon a special verdict or a Bill of Exceptions, J. ScaRLert. Temple, January 21, 1828. N. C. Tinpat. Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 7 (8.) Jomnt Oprnron of the Attorney and Solicitor General, Str Witiram Horne and Sir Jonn CaMPBELL, as to prove- sions of Charter of Justice not being at variance with Terms of Capitulation in the Mauritius. 1888. My Lorp,—We beg to acknowledge the receipt from your Lord- ship of the draft of an intended charter for the better administra- tion of justice in the Mauritius, which you have been pleased to transmit to us for our revision, together with a letter stating the circumstances which have determined his Majesty’s Government to the adoption of such a measure. In answer thereto, we have the honour to state that we have revised the draft according to your Lordship’s desire, and that we do not see any reason for altering its form or the terms of its several provisions, which we presume to be in their scope and object conformable to the intention of Government, and not to be at variance with the capitulation or treaty by which his Majesty acquired tne sovereignty of that island with reference to the power of altering its laws. W. Horne. Lincoln’s Inn, March 26, 18383. J. CAMPBELL. (9.) Jomr Opinion of the Attorney and Solicitor General, Sir Joun Campsett and Sin R. M. Rows, as to sealing of writs issued for election of House of Assembly in Newfoundland. 1837. My Lorp,—We have to acknowledge the receipt of your Lord- ship’s letter of the 14th instant, together with a case prepared by the Attorney General of the island of Newfoundland for the pur- pose of obtaining our opinion on the following points :— Ist. In case it shall be found that all the writs issued in 1832, under which the members of the House of Assembly in the island were elected and sate during all the sessions of the first General Assembly, were issued with- out seals, whether the Acts of the Legislature are to be deemed consequently void ? 2nd. In case it should be found that two only of the fifteen Digitized by Microsoft® 8 CASES AND OPINIONS ON CONSTITUTIONAL LAW. members of Assembly were elected under writs issued without seals, whether such defect renders the legis- lative Acts of the Governor and Assembly invalid ? We beg leave to state to your Lordship that we have fully con- sidered the case submitted to us, together with the accompanying papers, and we are clearly of opinion that no informality in the issuing of the writs can affect the validity of the acts done by the legislative body. The absence of the seal might perhaps have justified the Sheriff or other officers to whom it was directed in treating the instrument as a nullity, and consequently refusing to proceed to an election. But the elections were, in fact, made, and we are of opinion that no objection could afterwards be raised to the form of the instru- ments under which the returning officers acted so as to affect the legislative power of the persons returned. Being of opinion that the legislative competency of the Assembly would not be affected by the,circumstance of all the writs having been unsealed, we feel it hardly necessary to add, that it could not be affected by the fact that two of the writs issued without a seal supposing the rest to have been duly sealed. We beg leave to add that it will be expedient for the future that all writs for the election of members of Assembly should issue under the seal of the colony, all writs being in strictness instru- ments under seal. J. CAMPBELL. Temple, October 17, 1837. R. M. Roxre. (10.) Joint Oprnton of the Attorney and Solicitor General, Sir Jonn Camppexy and Sir R. M. Roxrs, as to power of the Queen in Council to make laws for South Australia. 1838. My Loxp,—We have to acknowledge the receipt of a letter from your Lordship, of yesterday's date, transmitting to us the copy of a letter received at the Colonial Office, from the Chairman of the Colonization Commissioners for South Australia, calling your Lord- ship’s attention to the effect which the statute of the late Session, cap. 60, may be supposed to have on the laws previously enacted in that province, and requesting us to report our opinion on the Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 9 following questions :—First, whether under the statute 1 & 2 Vict. ce. 60, s. 1, Her Majesty in Council has the power both to make laws and to delegate a concurrent] power of legislature to persons resident and being within the province? Secondly, whether the laws made by the local legislature, appointed under 4 Will. 4, ec. 95 (1), are repealed or have lost their authority by virtue of the 1 & 2 Vict. c. 60 (2)? And if so, then, Thirdly, whether it is com- petent to the Queen in Council to revive the authority of such repealed or abrogated laws ? We have now the honour to report to your Lordship, in answer to the first question, that, in our opinion, the Queen has the power, by Order in Council, to make laws for the Government of the province; and that she has, concurrently with that power, the power of appointing, by warrant under the sign-manual, any three or more persons resident and being in the province, who will have the power of making laws for the colony, subject to any restrictions which Her Majesty may think fit to impose. In answer to the second and third questions, we are clearly of opinion that all laws made under the authority of the Act 4 Will. 4, c. 95, will remain in force notwithstanding the Act of 1 Vict. c. 60. J. CAMPBELL. Temple, August 22, 1838. R. M. Rous. (11.) Jomvr Opinion of the Attorney and Solicitor General, Sir Joun CAMPBELL and Sir R. M. Rours, as to question of disqualification to sit in the House of Assembly in Newfound- land. 1887. | My Lorp,—We have had the honour to receive your Lordship’s letter of the 16th inst., transmitting to us certain papers respecting the ejectment from the House of Assembly of Newfoundland of Mr. Power, one of the members for Conception Bay, and request- ing our opinion whether the proceedings of the Assembly in this matter were according to law, and whether the seat of Mr. Power was legally vacated by his acceptance of the office of stipendiary magistrate ? (1) & (2) Both these Acts are repealed by 5 & 6 Vict. c. 61. = Digitized by Microsoft® 10 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Having taken these papers into consideration, we have to report to your Lordship, that, in our opinion, the seat of Mr. Power was not legally vacated by his acceptance of the office in question, and that the proceedings of the Assembly of N ewfoundland in this matter were contrary to law. We think it is impossible to contend that the statutable disquali- fications as to sitting in the House of Commons of the United Kingdom apply to the Assembly of Newfoundland. These dis- qualifications are different as to members for different parts of the United Kingdom, and cannot be applied to the members of a colo- nial Assembly established like that of Newfoundland. The British House of Commons has never claimed the right by its own authority of disqualifying any persons elected by the people and not disqualified by the common law. J. CAMPBELL. Temple, July 20, 1837. R. M. Roure. (12.) Jomnr Opixton of the Attorney and Solicitor General, Sir Jonn CaMPBeLyt and Sir Toomas WILDE, on the appoint- ment of Magistrates in the Mauritius. 1841. My Lorp,—We have the honour to acknowledge the receipt of Mr. Vernon Smith’s letter of the 14th inst., transmitting to us, by your Lordship’s directions, copies of a correspondence between the Secretary of State and the Governor of Mauritius, together with an ordinance passed by the Governor in Council, providing for the appointment of Justices of the Peace to take cognizance of cer- tain matters relative to merchant seamen, and requesting our opinion whether there is any objection to the confirmation by Her Majesty of the ordinance transmitted by the Governor ? Having considered this ordinance, with the accompanying docu- ments, we have to report to your Lordship that, in our humble opinion, there is no objection to its being confirmed by Her Majesty. Although Her Majesty in Council has legislative authority in this colony, a subordinate legislative authority is deputed to the Governor with the advice and consent of the Council of Govern- ment, whereby such an ordinance as the present may be passed subject to be confirmed or disallowed by Her Majesty. Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 11 Generally speaking, it belongs to the prerogative of the Crown to appoint magistrates, but there are many precedents for this power being motlified and regulated by legislative enactment. J. CAMPBELL. Temple, January 22, 1841. Tos. WILDE. (13.) Jomnr Opinion of the Attorney and Solicitor General, Sir A. E. Cocxsurn and Sir Ricuarp BerHett, on the power of the Legislature of St. Helena to pass an Ordinance conferring on a foreigner power to hold land in St. Helena. 1854. We have had the honour of receiving Mr. Merivale’s letter dated the 4th instant, stating that he was directed to ask whether, having regard to the constitution of the Island of St. Helena as described in the said letter, we were of opinion,— 1. That it would be lawful for the Legislature of St. Helena (under the direction of Her Majesty’s Government) to pass an ordinance conferring on a foreigner power to hold and transfer land within the colony of St. Helena? 2. That (in the event of such a coutse being deemed more ad- visable) land might be purchased by a British subject or subjects in St. Helena, to hold it as a trustee or trustees for the French Government, or for any person or body authorized by the French Government, to do the necessary acts for keeping the land in a proper state for the purpose required ; that purpose being, the fencing, watching, and protecting from injury, the spot occupied until recently by the remains of the Emperor Napoleon I. ? We have taken the subject into our consideration, and beg to state that the difference between the island of St. Helena and the settlement of Hong Kong (to our opinion with respect to which latter place we are referred) lies in this: that Hong Kong is terri- tory ceded by a foreign State, and therefore retaining its own laws, and not subject to English law, save so far as English law may be introduced and established by the authority of the Crown ; whereas, according to the information given us by Mr. Merivale’s letter, the island of St. Helena was “occupied” by British subjects in the year 1650, who therefore carried with them such of the then ex- isting laws of England as were applicable to the condition of a Digitized by Microsoft® Colonies ac- o by onquest, 12 CASES AND OPINIONS ON CONSTITUTIONAL LAW. new settlement, and in which the law prohibiting aliens to hold land may probably be deemed to be included. But whether this be so or not is, we think, immaterial, because we are clearly of opinion that, even if the law against aliens being owners of land, and also the law of mortmain, be considered as having been intro- duced into St. Helena, it is competent to the Legislature of St. Helena, under the authority of the Act 3 & 4 Will. 4, c. 85, s. 112, and the Order in Council of 1835, to alter those laws; and we therefore think that it would be lawful for the Legislature of St. Helena (under the direction of Her Majesty’s Government) to pass an ordinance conferring on a foreigner power to hold and transfer land within the colony of St. Helena. 2. We are also of opinion that the course pointed out in the second question might be adopted, but that in such a case, also, an ordinance of the legislature would be requisite, and we think the first course is to be preferred. A. E. CockBury. July, 1854. Ricuarp BETHELL. NOTES TO CHAPTER I. In Blankard v. Galdy, 2 Salk. 411, it was held that in the case of an infidel country obtained by conquest, the laws do not entirely cease, but only such as are against the law of God; and that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. In Calvin’s Case, 7 Rep. 17, the rule is stated much to the same effect—namely, that “ if a Christian King should conquer the kingdom of an infidel, and bring them under his subjection, then, ipso facto, the laws of the infidel are abrogated, for that they are not only against Christianity, but against the laws of God and of nature contained in the Decalogue ; and in that case, until certain laws be established amongst them, the King by himself, and such judges as he shall appoint, shall judge them and their cases according to natural equity. But if a king conquers a Christian kingdom, he may at his pleasure alter the laws of the kingdom, but until he does so, the ancient laws remain.” And see 2 P, Will. 75, Com. Dig. Ley (C). In Blankard v. Galdy, as reported in Comberbach, 228, the Court observed, “where it is said in Calvin’s case that the laws of a conquered country do immediately cease, that may be true of laws for religion, but it seems otherwise of laws touching the government.” In Campbell v. Hall, Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 13 ; Cowp. 209, 20 State Tr. 239, Lord Mansfield said that the laws of a conquered country continue in force until they are altered by the con- queror, and he added, that the “absurd exceptions as to pagans mentioned in Calvin’s case,” in all probability arose ‘from the mad enthusiasm of the crusaders.” And he said also, addressing counsel, as reported in 20 State Tr. 294, ‘Don’t quote the distinction for the honour of Lord Coke.” But a distinction between Christian and non-Christian countries seems to be countenanced by a decision of the Judicial Committee in Papayanni v. Russian Steam Company, 2 Moore, P. C. (N. 8.) 181, where it is said, that although between two Christian States all claims for juris- diction must be founded upon treaty engagements of similar validity, the same strict rule as to precision of treaty obligations would not be required. between a Christian and a non-Christian State ; and they added, “Consent may be expressed in various ways—by constant usage per- mitted and acquiesced in by the anthorities of the State, active assent, or silent acquiescence where there must be full knowledge.” Laws contrary to the fundamental principles of the British Constitution cease at the moment of conquest. Thus torture as a punishment would no longer exist: “ The constitution of this country put an end to that idea :” per De Grey, C.J., Fabrigas v. Mostyn, 20 State Tr. 181. In Picton’s Case, 30 State Tr. 742, Lord Ellenborough, C.J., said, “The laws that are repugnant to the rights of the conquering State cease, of course ;” upon which Mr. Nolan, one of the counsel for the prosecution, observed: ‘‘ That position carried to its proper extent is all for which itis necessary that I should contend. By the laws respecting religion in the very country (Spain) from which this island (Trinidad) has been con- quered, a heretic may be burned ; and by the laws of the same country, any person converting a Roman Catholic to the Protestant religion might be burned likewise. If, therefore, the chaplain of any one of his Majesty’s regiments had converted this poor girl to the Protestant faith, General Picton would have had a right, nay, it would have been his duty, to have burned this reverend person upon the principle for which his counsel must contend to-day.” In Ruding v. Smith, 2 Hagg. Cons. R. 380, Lord Stowell said : “It sometimes happens that the conquered are left in possession of their own laws—more frequently the laws of the conquerors are imposed upon them ; and sometimes the conquerors, if they settle in the country, are content to adopt for their own use such part of the laws prevailing before the conquest as they may find convenient under the change of authority to retain. I pre- sume that there is no legal difference between a conquered country and a conquered colony in this respect as far as general law is concerned ; and I am yet to seek for any principle derivable from that law which bows the conquerors of a country to the legal institutions of the con- quered. Such a principle may be attended with most severe incon- venience in its operation . . . . Iam perfectly aware that it is laid down generally, in the authorities referred to, ‘that the laws of a conquered country remain till altered by the new authority.’ I have Digitized by Microsoft® 14 CASES AND OPINIONS ON CONSTITUTIONAL LAW. to observe, first, that the word remain has ex vi termini a reference to its obligation upon those in whose usage it already existed, and not to those who are entire strangers to it, in the whole of their preceding intercourse with each other. Even with respect to the ancient in- habitants, no small portion of the ancient law is unavoidably super- seded by the revolution of government that has taken place:” see The Fama, 5 Rob. Adm. 106. The old Hindoo law is thus stated in the Institutes of Menu, Art. 203: “Let him (the King) establish the laws of the conquered nations as declared in their books.” It is little to the credit of our legislature that the practice of suttee in the East Indies was sanctioned by Act of Parliament. The stat. 37 Geo. 3, c. 142, s. 12, provided that no act done in India in consequence of the rule or law of caste, so far’as respected the members of the same family only, should be deemed a crime, although the same might not be justifiable by the laws of Eng- land. But by Regulation XVII. of 1829, passed by the Governor- General in Council, the practice of suttee was declared illegal, and punishable by the criminal courts. All persons convicted of aiding and abetting in the sacrifice of a Hindoo widow were to be deemed guilty of culpable homicide. The preamble of this Regulation states that the practice of suttee was “revolting to the feelings of human nature,” and that in abrogating it the Governor-General in Council did not intend to depart “from one of the first and most important principles of the system of British Government in India, that all classes of the people be secure in the observance of their religious usages, so long as that system can be adhered to without violation of the paramount dictates of justice and humanity ” (1). Subject to the exceptions stated by Lord Mansfield in Campbell v. Hall, Cowp. 209, 20 State Tr. 323, that the Crown cannot make any change contrary to fundamental principles, such as exempting an inhabitant from the laws of trade or from the power of Parliament, or giving him privileges exclusive of other subjects, “and so on in many other in- stances which might be put,” the Queen in Council may impose upon a conquered country whatever laws she may think fit. “If the King refuses to grant a capitulation, and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection, and grants them their property, he has a power to fix such terms and conditions as he thinks ‘proper.” —Campbell v. Hall, ubi sup.; and see Smith v. Brown, 2 Salk. 666. In Jephson v. Riera, 3 Knapp, 130, it was contended that Acts of Parliament or Orders in Council were the only constitutional modes by which the laws of a conquered country could be changed. But the Court held that, ‘as the charters of justice appeared to have been issued under the great seal, and therefore under the advice of a known responsible minister of the Crown, and as the language plainly and (1) It is a remarkable fact that suttce is nowhere mentioned in the Vedas or in the Institutes of Menu, but by inveterate custom it had acquired the force of law. Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 15 explicitly declared the will of the King that the English law shall be the measure of justice in Gibraltar, the law of England has been law- fully substituted for the law of Spain.” And in Cameron v. Kyte (ibid. 346), which was the case of a colony (Berbice) ceded by capitulation from the Dutch, and the question was as to the power of the Governor to alter the existing law, there being no such power contained in his commission, the Court said: “We do not mean to say that this portion of the King’s sovereign authority may not be exercised by other means than by the Order of his Majesty in Council; that it may not be given by a commission or instruction under the King’s sign-manual and signet . . . . We do not say that the King’s will, intimated by the Secretary of State for the Colonies, might not be operative.” Also, “the King has the whole legislative authority in a conquered colony, in so far as he may not have parted with it by capitulation or by his own voluntary grant.” And in Beaumont v. Barrett, 1 Moore, P. C. 75, with reference to Jamaica : ‘‘ It appears that it was a conquered island ; and, as in other territories obtained by conquest, such laws are in force there as the King, by his supreme authority, may choose to direct.” But we must always understand that this power of the Crown is subject to the exceptions already stated as laid down by Lord Mansfield. The King cannot change the laws of the land: Bro. Abr. Prerog. The King cannot by his grant alter the law in any respect: Com. Dig. Pre- rog. (D) (1). And whatever may be the theoretical power of the Crown over a conquered territory, it is not likely that public opinion would tolerate any harsh or exceptional exercise of the prerogative ; so that, in point of fact, its situation under the Crown of England will be very much the same as that of a country acquired by settlement and occupancy. Lord Chief Justice Cockburn says, in a note to his pub- lished Charge to the Grand Jury in R. v. Eyre, in 1867, p. 19, that the question of the power to put martial law in force in Jamaica (as to which he had no doubt that it was entitled to the character of a settled colony—‘the land was conquered, but the inhabitants by whom it was settled were not”)—is not affected by the precedents of Demerara, Ceylon, or any other Crown colony, asin those the power of the Crown isabsolute. In his Charge to the Grand Jury in another case of R.v. Eyre, in 1868, Blackburn, J., said : ‘“‘ When a colony is acquired by conquest, and when it had a foreign law in force . . . . I believe there is no doubt that the Crown has an option ; and one of its powers in such a case is either to leave the law which was in force in the country at that time still inforce . . . or to change that law, to abolish it, and (1) In old times the King claimed the right by his prerogative to disgavel lands, and change customary lands into military tenures. For instances see Elton’g “Tenures of Kent :” London, 1867, pp. 368, 370. But it afterwards became settled law that nothing but an Act of Parliament could change a tenure inherent in the land itself. “If gavelkind lands escheat and come to the Crown by attainder, and be granted to be held by knight-service, or per baroniwm, the customary descent is not changed ; neither can it be, but by Act of Parliament, for it is a custom fixed in the land.”—Hale’s Hist, Com, Law, p. 312. Digitized by Microsoft® Colonies ac- quired by Cession. Where a Legislature has been granted. 16 CASES AND OPINIONS ON CONSTITUTIONAL LAW. to substitute the English law. Whether it could go further, and substitute the English law or not, is immaterial for us to consider at present, and I express no opinion upon abi A country reconquered from an enemy reverts to the same state that it was in before its conquest. The second acquisition is, in fact, con- sidered rather as a resumption than a conquest : Gumbes’s Case, 2 Knapp, 369. In such a case the doctrine of Jus postliminii seems to apply. The same rule of English law as to the power of the Crown to im- pose law applies equally to a country obtained by cession, except that, of course, the right of legislation may be regulated by the terms of the treaty with the ceding power; and those terms ought to be inviolably observed. Thus, in Re Adam, 1 Moore, P. C. 470, the Court said : “ The Mauritius, before its surrender to Great Britain in 1810, was a French colony, and having been surrendered on the condition that the inhabi- tants should preserve their religious laws and customs, we must look to the law of France as established in the colony before that event.” The following Case and Opinion are taken from Chalmers’s Opinions :— Case.—‘‘ By the Treaty of Utrecht, the King of France gave up the French part of Newfoundland to Great Britain, but the French inhabi- tants were allowed to remain there and enjoy their estates and settle- ments, provided they qualified themselves to be subjects of Great Britain, and those who would not do it had leave to go elsewhere, and take with them their moveable effects. But by her late Majesty’s letter, in consideration of the King of France releasing a number of Protestant slaves out of his galleys, she did permit the French inhabitants at Placentia in Newfoundland, who were not willing to become her sub- jects, to sell and dispose of their leases and lands there.” Quere.—* Whether the Queen by the said letter could dispose of lands granted to the Crown by treaty ?” Opinion—I am of opinion that the Queen could not by her letter dispose of lands granted to the Crown by treaty ; but if she entered into any regular agreement with the Crown of France for that purpose, she was by the law of nations engaged to do everything in her power to enable the French to have the benefit of it; which might be done by her confirming the title to such of her subjects as should pay the French a consideration in money, or otherwise, for their lands or houses. “March 10, 1719-20. “ Ricup. WEsT.” When the Crown has once granted a legislature to a conquered or ceded colony, it cannot afterwards exercise with respect to such colony its former power of legislation: Campbell v. Hall, Cowp. 204, 20 State Tr. 329, where Lord Mansfield said : “ We therefore think by the two proclamations, and the commission to Governor Melville, the King had immediately and irrevocably granted to all who did or should in- habit, or who had or should have property in, the island of Grenada— Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 17 in general to all whom it should concern—that the subordinate legis- lation over the island should be exercised by the Assembly, with the Governor and Council, in like manner as in the other provinces under the King” (1). “After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom :” Re Lord Bishop of Natal, 3 Moore, P. C. (N.S.) 148. And even if a constitution has not been given, but the laws of England have been granted by the Crown, it seems that its power to change them in the colony is gone. In Calvin's Case, 7 Rep. 14, the Court said: ‘And if a king took a Christian kingdom by conquest, as King Henry II. had Ireland, after King John had given unto them, being under his obedience and subjection, the laws of Eng- land for the government of that country, no succeeding King could alter the same without Parliament:” see Re The Island of Cape Breton, 5 Moore, P. C. 259. A question came before the Law Officers of the Crown and myself in 1867, as to whether the Indian Legislature, by virtue of the power inherent in sovereignty, irrespective of Acts of Parliament, could pass laws binding on native subjects out of British India ; and we were of opinion that, having regard to the manner in which imperial legislation had been from time to time applied to the government of India, the extent of the powers of the Legislature of India depended upon the authority conferred upon it by Acts of Parliament, and we thought it unsafe to hold that the Indian Legislature had an in- herent power to pass such laws. It is, however, right to mention that the then Queen’s Advocate (Sir R. Phillimore) was of a different opinion. With respect to colonies acquired by occupancy and settlement, which Colonies ac- are in fact plantations in the original meaning of the word, the opinions ey ' given in the text accurately express the law: see 2 P. Will. 75; ad Forbes v. Cochrane, 2 B. & C. 463. “The common law is the inheri- tance of all the subjects of the realm; and therefore in the plantations or elsewhere, where colonies of English are settled, they are to be governed by the laws of England. So if a foreign territory, not in- habited, be obtained by the Crown of England, all laws of England bind there:” Com. Dig. Ley (C). ‘‘The term ‘plantations,’ in its common known signification, is applicable only to colonies abroad, where things are grown, or which were settled principally for the purpose of raising produce; and have never, in fact, been applied toa place like Gibraltar, which is a mere fortress and garrison, incapable of raising produce, but (1) The island of Grenada had been taken by Great Britain in the Seven Years’ War, and ceded to us at the Peace of 1762. The King, by a proclamation issued in 1763, of his own authority imposed a tax of 4 per cent, on all exports ; and the action was brought in the Court of King’s Bench in England by the plaintiff, a British sub- ject, who had subsequently purchased an estate and settled in the island, to recover back the sum he had been compelled to pay under this tax, in order that he might have liberty to ship his sugars to London. He maintained that such a tax could only be imposed by the authority of Parliament. c Digitized by Microsoft® Statutes applicable to the Colonies. 18 CASES AND OPINIONS ON CONSTITUTIONAL LAW. supplied with it from other places. In truth, the term plantation in the sense used by the Navigation Laws has never been applied either in common understanding or in any Acts of Parliament (at least none such could be pointed out when demanded in the course of the argument) to any of the British dominions in Europe ; not to Dunkirk, while that was in our possession, nor at the present day to Jersey, Guemsey; or any of the islands in the Channel :” per Lord Ellenborough, C.J., Lubbock v. Potts, 7 East, 455: see Rubichon v. Humble, 1 Dow. 191; Roberdean v. Rous, 1 Atk. 543. “ Newfoundland is a settled, not a con- quered colony, and to such colony there is no doubt that the settlers from the mother-country carried with them such portions of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have, on the other hand, the same laws and the same rights, unless they have been altered by Parliament. And, upon the other hand, the Crown possesses the same prerogatives and the same powers of government that it does over its other subjects. Nor has it been disputed that the Sovereign had the right of creating a local legislative assembly, with authority subordinate indeed to Parliament, but supreme within the limits of the colony, for the government of its inhabitants :” Kielley v. Carson, 4 “Moore, P. 0. 84. “It is not disputed that the law prevailing in the Falkland Islands must be considered’ to be the common law of England, modified only by such statutes as apply to these islands :” The Falkland Islands Company v. The Queen, 2 Moore, P. C. (N.S.) 273. In BR. v. Brampton, 10 East, 288, Lord Ellenborough, C.J., said: “In the absence of any evidence to the contrary, I may suppose that the law of England, ecclesiastical and civil, was recognised by subjects of England in a place occupied by the King’s troops, who would impliedly carry that law with them.” But this is too broadly stated, and is cer- tainly not true as regards ecclesiastical law. See, as to the validity of a marriage celebrated at the Cape of Good Hope between British sub- jects by the chaplain of the British forces occupying that settlement under capitulation, the judgment of Lord Stowell in Ruding v. Smith, 2 Hage. Cons. R. 371; and see Burn v. Farrar, 2 Hage. Cons. R. 369. The common law of England is the common law of the colonies, and such statutes as have been passed in affirmance of the common Jaw previous to their acquisition, are in force there; but no statutes afterwards passed are binding on their rulers, unless they are par- ticularly mentioned: 2 P. Will. 75; R.v. Vaughan, 4 Burr. 2500. The question of whether a particular statute has been introduced into a colony seems to be one of fact, and may be proved by evidence. It was so treated in Gardener v. Fell, 1 Jac. & Walk. 22; and Freeman v. Fairlie, 1 Moore, Ind. App. 305. Amongst the statutes which have been held not to apply to the colonies are the Mortmain Acts: Altorney General v. Stewart, 2 Mer. 143—positive regulations of Police: R. v. Vaughan, 4 Burr. 2500—Statute of Frauds as to devise of lands: 2 P. Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 19 Will. 75—Penal statutes: Blankard v. Galdy, 2 Salk. 402; Dawes v, Painter, Freeman, 175—the Alien Acts: Mayor of Lyons v. East India Company, 1 Moore, P. C. 175—the Marriage Acts: Lautour v. Teesdale, 8 Taunt. 836—the Bankrupt Acts: Clark v. Mullick, 3 Moore, P. C. 252. As to Statutes of Limitation, it has been held that 21 Jac. 1, c. 16, extends to the Hast Indies: Hast India Company v. Oditchurn Paul, 7 Moore, P. C. 85. In an opinion given by Sir. A. Cockburn, A.G., and Sir R. Bethell, 8.G., August, 1854, they said that neither the 21st Jac. 1, c. 2,an Act to quiet title against the Crown, nor the 9th Geo. 3, c. 16, extending and amending that Act, applies to Prince Edward’s Island ; not the first of these statutes, because it only applies to lands which had been enjoyed for sixty years at the passing of the Act; nor the second, because at the time it passed Prince Edward’s Island was part of the province of Nova Scotia, which had a legislative constitu- tion of its own; and the Act not being extended to the colonies, it would not apply to Nova Scotia or Prince Edward’s Island. The statute 9 Geo. 4, c: 83, s. 24, enacts that all laws and statutes within the realm of England at the time of the passing of that Act (not being inconsistent with any charter, or letters patent, or Order in Council, which might be issued in pursuance thereof), should be applied in the Courts of New South Wales and Van Diemen’s Land, so far as the same could be applied within the said colonies. And it provided that the governors of those colonies, with the advice of the Legislative Councils, might, by ordinances, declare whether any particular laws or statutes extended to such colonies; but before such ordinances were made, the Supreme Courts were to adjudge and decide as to their application. And it was held in Astley v. Fisher, 6 C. B. 572, that a plea of an attorney’s lien on a deed for work done in the Supreme Court of New South Wales was bad, as it did not show that the law of New South Wales was not inconsistent with the lien claimed. There Maule, J., said, ‘‘ The 9 Geo. 4, c. 83, does not import into the colony all the English law.” 1+ has been held that the rule of the English common law, that rent due is a debt which ranks in the administration of assets as a specialty debt, does not apply to Jamaica, nor to any lands out of the jurisdiction of the English courts: Vincent v. Godson, 24 L. J. (N.S.), (Ch.) 121. See as to land in India, Freeman v. Fairlie,1 Moore, Ind. App. 305; and as to a rule of the English bankrupt law prevailing in a colony, Rolfe v. Flower, 3 Moore, P. ©. (N.S.) 365. In Colonial Bank v. Warden, 5 Moore, P. C. 354, Parke, B., said: “The 78th section of 2 & 3 Vict. c. 41, says, ‘all moveable estate and effects of the bankrupt, wherever situate ;’ that would include the colonies.” The English law of felo de se, with con- sequent forfeiture, does not apply to the suicide of a Hindoo in India: Attorney General of Bengal v. Ranee Surnomoye Dossee, 9 Moore, Ind. App. 887; see Bentinck v. Willink, 2 Hare (Ch.) 1. Whether any particular statute has or has not force in a colony must therefore be determined by the proper tribunals—first, in the colony c 2 Digitized by Microsoft® Power of Crown in case of Settle- ments. Barbarous or infidel countries, Foreign ac- quisition vested in the Crown. 20 CASES AND OPINIONS ON CONSTITUTIONAL LAW. itself, and afterwards on appeal to the Queen in Council. All Acts which by reasonable construction must be supposed to apply to the colonies, whether passed before or after the acquisition, will be con- sidered obligatory upon them. ‘The commercial intercourse of the colonies was regulated by the general laws of the British Empire, and could not be restrained or obstructed by colonial legislation :” Story, Comm. s. 178. In the case of colonies by occupancy and settlement, the Crown alone cannot legislate, but it may by virtue of its prerogative appoint governors, and erect ccurts of justice, and give the power of summon- ing representative assemblies; in other words, may grant a constitu- tion: Kielley v. Carson, 4 Moore, P. C. 85. An exception, however, in favour of the legislative power of the Crown has been made in the case of settlements on the coast of Africa and the Falkland Islands, where by statute 6 & 7 Vict. c. 13 the Queen in Council is empowered to establish laws, institutions, and ordinances; but all such Orders in Council are to be laid before Parliament. When Englishmen establish themselves in an uninhabited or bar- barous country, they carry with them not only the laws but the sove- reignty of their own State, and those who live amongst them, and become members of their community, become also partakers of, and subject to, the same laws : Advocate General of Bengal v. Ranee Surnomoye Dossee, 2 Moore, P C.(N.S.) 59. As to the nature of the settlement made in the East Indies, see the same case, where the Court said: “If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories which they were permitted by the ruling powers of India to establish ; but this was not on the ground of general international law, or because the power of England or the laws of England had any proper authority in India, but upon the prin- ciples explained by Lord Stowell in a very celebrated and beautiful passage of his judgment in the case of The Indian Chief, 3 Rob. Adm. 29.” The passage here referred to is the following: “In the East from the oldest times an immiscible character has been kept up; foreigners are not admitted into the general body and among the society of the nation; they continue strangers and sojourners as all their fathers were—Doris amara suam non intermiscuit undam : not ac- quiring any national character under the general sovereignty of the country, and not trading under any recognized authority of their own original country, they have been held to derive their present character from that of the association or factory under whose protection they live and carry on their trade.” British subjects cannot take possession in their own right of a foreign country, which, if acquired, becomes vested in the Crown. ‘The statute 53 Geo. 3, c. 155, s. 95, declared the undoubted sovereignty of the Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 21 Crown over the territorial acquisitions of the East India Company. “No point is more clearly settled in the courts of common law, than that a conquered country forms immediately part of the King’s domi- nions:” per Sir W. Scott, The Foltina, 1 Dods, 451; and see, per Lord Mansfield, Campbell v. Hall, 20 State Tr. 323. The mere possession of a territory by an enemy’s force does not of itself necessarily convert the territory so occupied into hostile territory, or its inhabitants into enemies: per cur. Cremidi v. Powell, 11 Moore, P. C. 101; and see The Manilla, 1 Edw. 3; Donaldson v. Thompson, 1 Camp. 429; Hagedorn v. Bell, 1 M. & 8. 450. : Of course, all British colonies whatever are subject to the para- Colonies mount authority of Parliament: see statute 7 & 8 Will. 8, c. 22, 8. 9. ak In Campbell v. Hall, Cowp. 204, 20 State Tr. 304, Lord Mansfield said authority of that the power of giving a constitution by the Crown to a conquered Parliament. country is not exclusive of Parliament; “there cannot exist any power in the King exclusive of Parliament,” and “a country conquered by the British arms becomes a dominion of the King in right of his crown, and therefore necessarily subject to the legislative power of the Parlia- ment of Great Britain.”—Jbid. 324. This right of Parliament was expressly affirmed as to the American colonies by the statute 6 Geo. 3, c. 12, but afterwards as regards taxation renounced by statute 18 Geo. 3, c.12. In his Charge to the Grand Jury in RB. v. Eyre, in 1868, it was said by Blackburn, J.: ‘‘ Although the general rule is that the legislative assembly has the sole right of imposing taxes on the colony, when the imperial legislature chooses to impose taxes, according to the rule of English law they have a right to do it.” And again, “In the Naviga- tion Laws there are express enactments that the colonists should not make laws to allow foreigners to trade with the colonies, and then they exercise the control which they had a right to exercise; and when that is done, no doubt the colonial legislature cannot make a law which would be binding in contradiction to the imperial legislature.”— Ibid. See as to Canada, 14 Geo. 8, c. 83; 81 Geo. 3, ¢. 31; 3 & 4 Vict. c. 35. The statute 3 & 4 Will. 4, c. 59, s. 56, enacts that all laws in any of the British possessions in America repugnant to any Act of Parliament made or thereafter to be made, “so far as such Act shall relate and mention the said possessions,” are, and shall be, null and void. The next section provides that no exemption from duty in any of the British possessions abroad contained in any Act of Parliament shall extend to any duty not imposed by Act of Parliathent, unless and so far only as any duty not so imposed is expressly mentioned in such exemption. Statute 22 & 23 Vict. c. 12, enacts that it shall be lawful for the legislature or other legislative authority of any of Her Majesty’s possessions abroad, to which any of the provisions of the statute 54 Geo. 3, c. 15 (“ An Act for the more easy Recovery of Debts in Her Majesty’s Colonies of New South Wales”), or certain sections of the statute 5 & 6 Will. 4, c. 62 (as to proof by declaration instead of oath), apply, to repeal, alter, Digitized by Microsoft® Status of aliens in the Colonies, 22 CASES AND OPINIONS ON CONSTITUTIONAL LAW. or amend all or any of such provisions, in like manner as if they had been originally enacted by such legislature or legislative authority. The Copyright Act (5 & 6 Vict. c. 45) says that the words “ British dominions” in the Act shall include ‘“‘all the colonies, settlements, and possessions of the Crown,” and enacts that the Act shall extend to every part of the British dominions; and it was held in Low v. Rout- ledge, L. R. 1 Ch. App. 42, that an alien ami resident in Canada who had not complied with the provisions of the Canadian Copyright Act (4 & 5 Vict. c. 6), was entitled to copyright under the Imperial Act. It was there contended that the general words ‘all colonies” did not include such colonies as have an independent legislature, and that the Imperial Act could not by a side-wind repeal the Canadian Act. But the Court said that the word ‘ colonies” in the statute must extend to all colonies in the absence of a context to control it, and they could find no such context. The statute 26 & 27 Vict. c. 6, after reciting that Her Majesty has from time to time caused letters patent to be made under the great seal, intended to take effect within Her Majesty’s colonies and possessions beyond the seas, enacts that no such letters patent shall (unless otherwise provided therein or by other lawful authority) take effect until the making of them has been signified therein by proclamation or other public notice. The Documentary Evidence Act, 1868 (31 & 32 Vict. c. 37), pro- vides that, subject to any law that may be from time to time made by the legislature of any British colony or possessions, the Act shall be in force in every such colony and possession, and it is made to extend to the Channel Islands and the Indian territories of Her Majesty. And by statute 30 & 31 Vict. c. 45, s. 16, it is made lawful for Her Majesty to empower the Admiralty by commission under the great seal to establish Vice-Admiralty Courts in any British possession, notwith- standing that such possession may have previously acquired inde- pendent legislative powers. By statute 29 & 30 Vict. c. 65, Her Majesty may, by proclamation issued with the advice of the Privy Council, declare gold coins made at any colonial branch of the Royal Mint duly established by proclamation a legal tender within any part of the British dominions. In Low v. Routledge, ubi sup., it was insisted in argument that an alien coming into Canada could only acquire such rights as are given by the law of Canada, and could not therefore be entitled to copy- right ; in support of which proposition the cases of Donegani v. Done- gani, 3 Knapp. 63; Re Adam, 1 Moore, P. C. 460; Brook v. Brook, 3 Sm. & Giff. 481; 9 H. L. Ca. 198, 8.C. ; and Hope v. Hope, 8 D. M. & G. 731, were cited. But Turner, L.J., said : “On examining these cases they will be found to decide no more than this—that as to aliens coming within the British colonies, their civil rights within the colo- nies depend upon the colonial laws; they decide nothing as to the civil rights of aliens beyond the limits of the colonies. This argument Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 23 on the part of the defendants is in truth founded on a confusion between the rights of an alien as a subject of a colony and his rights as a subject of the Crown. Every alien coming into a British colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled to the benefit of the laws which affect all British subjects. He has obligations and rights both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws; but as to his rights beyond the colony, he cannot be affected by those laws, for the laws of a colony cannot extend beyond its territorial limits.’—See Craw v. Ramsay, Vaugh. 274. The status of a person domiciled in a colony must be determined by the law of England, but the rights and liabilities incident to such status, by the law of the colony: In re Adam, 1 Moore, P. C. 460. When an Act of Parliament declared that all laws passed by the Validity of legislature of a colony should be valid and binding within the colony, Colonial and that the colonial Court of Appeal should be subject to such pro- Ns: visions as might be made by any Act of the colonial legislature, it was held that an Act having been passed by the colonial legislature limit- ing the right of appeal to causes where the sum in dispute was not less than a certain amount, a petition for leave to appeal in a case where the sum was of less amount could not be received by the King in Council, although there was a saving in the Colonial Act of the rights and prerogatives of the Crown: Cuvillier v. Aylwin, 2 Knapp, 72. The statute 6 Vict. c. 22, enacts that no law or ordinance made by the legislature of any British colony for the admission of the evidence of persons “‘ who, being destitute of the knowledge of God and of any religious belief, are incapable of giving evidence upon oath in any court of justice,” shall be null and void or invalid by reason of any repugnancy to the law of England, but such law or ordinance shall be subject to the confirmation or disallowance of Her Majesty as any other law or ordinance of the colonial legislature. A question came before the Law Officers of the Crown, Sir R. Bethell, A. G., and Hon. J.S. Wortley, 8. G., in 1857, as to the confirmation by Her Majesty of an ordinance passed by the Legislature of Hong Kong “for Amending the Law of Evidence in Trial by Jury ;” and they said, in their Opinion: “The 6th Vict. c. 22 gives a power to the legislature of any British colony to make ordinances touching the admission of evidence in any judicial proceeding in such colony, although such ordinance may be repugnant to the law of England. This enactment is limited to the admission of evidence only, and the Act recognizes the obligation of Colonial Acts being in accordance with the law of England. But the 5th, 6th, 7th, and 8th enactments of the Hong Kong ordinance pro- pose to alter most materially the established law of England in respect of the crime of perjury, and to make that punishable as perjury which by the laws of England does not amount to that offence. This is in our opinion illegal.” Digitized by Microsoft® Extent of jurisdiction of Colonial Legislatures. 24 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Recently, the powers of colonial legislatures have been enlarged and regulated by Acts of Parliament: see statute 26 & 27 Vict. c. 84. And by statute 28 & 29 Vict. c. 63, intituled “ An Act to remove doubts as to the validity of Colonial Laws,” it is enacted that any colonial law repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under the authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy be void. But no colonial law shall be void or inopera- tive on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of such Act, order, or regu- lation; and no colonial law shall be void by reason only of any instructions with reference to such law, or the subject thereof, which may have been given to the Governor by Her Majesty, by an instru- ment other than the letters patent or instrument authorizing him to assent to laws for the government of the colony. The colonial legis- latures are also empowered to establish courts of judicature, and the representative legislatures (which are defined to be legislative bodies of which one half are elected by inhabitants of the colony) are em- powered to make laws respecting their own constitution, powers, and procedure, provided that such laws shall have been passed in con- formity with any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the colony. The term “colony” in this Act includes all Her Majesty’s possessions abroad in which there exists a legislature, except the Channel Islands, the Isle of Man, and British India. By stat. 28 & 29 Vict. c. 64, laws made by colonial legislatures for establishing the validity of marriages con- tracted in their respective colonies are to have the same force and effect within all parts of Her Majesty’s dominions as they have within the colony for which such laws were made; but no effect or validity is given to any marriage unless both the parties were at the time of the marriage, according to the law of England, competent to contract the same. See as to the power of the Legislature of New South Wales to pass a particular Act, Bank of Australia v. Nias, 16 Q. B. 733; and see the powers of the old Irish Parliaments discussed in Craw v. Ramsay, Vaugh. 292. The jurisdiction of colonial legislatures extends to three miles from the shore. In an opinion given by the Law Officers of the Crown—Sir J. Harding, Queen’s Advocate; Sir A. E. Cockburn, Attorney General ; and Sir R. Bethell, Solicitor General—with reference to British Guiana, Feb. 1855, they said : ‘“‘ We conceive that the colonial legislature cannot legally exercise its jurisdiction beyond its territorial limits—three miles from the shore—or, at the utmost, can only do this over persons domi- ciled in the colony who may offend against its ordinances even beyond those limits, but not over other persons.” In an opinion given by Sir Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 25 J. Harding, Queen’s Advocate, in Aug. 1854, on the question within what distance of the coasts of the Falkland Islands foreigners might be legally prevented from whale and seal fishing, he said : “Her Majesty’s Government will be legally justified in preventing foreigners from whale and seal fishing within three marine miles (or a marine league) from the coasts, such being the distances to which, according to the modern a ac and usage of nations, a cannon-shot is supposed to reach.” The statute 23 & 24 Vict. c. 121, after reciting that divers of Her Power of Majesty's subjects have occupied, or may hereafter occupy, places being a possessions of Her Majesty, but in which no Government has been tures esta- established by authority of Her Majesty, enacts that the provisions of blished. statute 6 & 7 Vict. c. 13, by which the Crown is empowered to estab- lish by Order in Council laws, institutions, and ordinances for the government of Her Majesty’s settlements on the coast of Africa and the Falkland Islands, shall extend to all possessions of Her Majesty not having been acquired by cession or conquest, nor, “ except in virtue of this Act,” being within the jurisdiction of the legislative authority of any of Her Majesty’s possessions abroad. The statute 3 & 4 Will. 4, c. 93, empowers the Crown to appoint superintendents of trade in China, and by Order in Council to give them power and authority to make regulations for the government of British subjects in China, and to impose penalties, forfeitures, or imprisonment for the breach of such regulations. Seeon this Evans v. Hution, 4 M. & G. 941. In an opinion given by Sir A. Cockburn, A.G., and Sir R. Bethell, Power of 8.G., Feb. 15, 1856, they said, that “the law and practice of Parlia- Looe ment, as established in the United Kingdom, are not applicable to to commit. colonial legislative assemblies, nor does the rule of the one body furnish The lex et any legal analogy for the conduct of the other.’ The correctness of Sn this opinion has been abundantly established by decided cases. It was does not held, indeed, in Beawmont v. Barrett, 1 Moore, P. C. 59, that: the Legisla- 9PPIY- () tive Assembly of Jamaica had the power of imprisoning for contempt by the publication ofalibel. But so faras that decision was founded upon the idea that every legislative body had the power of committing for contempt, it may be considered as overruled by Kielley v. Carson, 4 Moore, P. C. 63, where the Court decided that the House of Assembly in Newfoundland had no such power, saying: “They are a local legis- lature with every power reasonably necessary for the proper exercise of their functions and duties; but they have not what they have erro- neously supposed themselves to possess—the same exclusive privileges which the ancient law of England has annexed to the House of Parlia- ment.” But it may be inferred from what was said in that case that frequent usage of the power of committal by a colonial legislature, (1) See an opinion by Mr. Hargrave, in 1793, on a commitment by the Irish House of Lords for contempt and breach of privilege : “ Jurisconsult Exercitations,” i, 197. : Digitized by Microsoft® Modes and dates of ac- uisition of olonies. 26 CASES AND OPINIONS ON CONSTITUTIONAL LAW. and long acquiescence by the public with the sanction of the local tri- bunals, would raise a presumption that the power had been duly com- municated by law. See also Fenton v. Hampton, 11 Moore, P. C. 347; Doyle v. Falconer, L. R.,1 P. C. 328. In the last case the Court said: “The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of the lew et consuetudo Par- liamenti, which is a law peculiar to and inherent in the two Houses of Parliament in the United Kingdom. It cannot therefore be inferred, from the possession of certain powers by the House of Commons by virtue of that ancient usage and prescription, that the like powers belong to the legislative assemblies of comparatively recent creation in the dependencies of the Crown. Again, there is no resemblance between a colonial House of Assembly, being a body which has no judicial functions, and a court of justice being a court of record. There is, therefore, no ground for saying that the power of punishing for contempt, because it is admitted to be inherent in the one, must be taken by analogy to be inherent in the other.” They added thatin the case’ before them—that of the Legislature of Dominica—such a privi- lege might possibly have been granted by the instrument creating the Assembly, since Dominica was a conquered or ceded colony, and the introduction of the law of England seems to have been contemporaneous with the creation of the Assembly. Itmight be possible to enlarge the existing privileges of the Assembly by an Act of the local legislature passed with the consent of the Crown, since such an Act seems to be within the 3rd section of the statute 28 & 29 Vict., c.63 (“An Act to remove doubts as to the validity of Colonial Laws”). That extraordinary privileges of this kind when regularly acquired would be duly recog- nised, had been shown by the case of Dill v. Murphy, 1 Moore, P. C. (N. 8.) 487, in which it was held that the lea et consuetudo Parliamenti doves not apply as part of the common law to the colonies. The House of Keys in the Isle of Man has not in its legislative capacity the power to commit for contempt: Re Brown, 33 L. J. (N. 8.) Q. B. 193. The following is a list of the British Colonies, with the modes and dates of acquisition :— By Carturz: Gibraltar, 1704; Malta, 1800. By Carirutation: Jamaica, 1655; Ceylon, 1796; Cape of Good Hope, 1796; Trinidad, 1797; St. Lucia, 1803; British Guiana, 1803 ; Mauritius, 1810. By Czssion: Honduras, 1670; Canada, 1763; Dominica, 1763; Grenada, 1763; St. Vincent, 1763-1783; Tobago, 1763; Bahamas, 1783. (It seems doubtful whether the Bahamas were acquired by ces- sion or by conquest. See Clark’s “ Colonial Law,” p. 367.) Heligoland, 1814; Hong Kong, 1843 ; Labuan, 1846. By Szrrtement: Newfoundland, 1497; New Brunswick and Nova Scotia, 1497 (now incorporated with Canada) ; Prince Edward’s Island, 1497; Barbadoes, 1605; Bermuda, 1609; Nevis, 1628; Turk’s Island, Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 27 1629; Gambia, 1631; Antigua, 1632; Montserrat, 1632; St. Christo- pher, 1623-1650; St. Helena, 1661; Gold Coast, 1661; Virgin Islands, 1665; Sierra Leone, 1787; Australian colonies, from 1787 to 1859; Tasmania, 1803 ; New Zealand, 1814; Falkland Islands, 1765 and 18383 ; British Columbia, 1858. The Srrairs SETTLEMENTS, comprising Singapore, Penang, and Ma- lacca, were transferred from the Indian Government to the Colonial Office by Order in Council under the stat. 29 & 30 Vict. c. 115. With respect to Constitutions, our colonies may be divided into Colonial two classes: 1, those which possess representative institutions which Constitutions. have been established either directly or indirectly under the authority of Acts of Parliament; and 2, those whose Constitutions have been established by local Acts, which have afterwards received the Royal assent. In the first class are included— CanapA: 81 Geo. 8, c. 81; 3 & 4 Vict. c. 85; 17 & 18 Vict. c. 118; 30 Vict. c. 3. CoLumptia : 29 & 30 Vict. c. 67 (repealing 21 & 22 Vict. c. 99). Newrounpuanp: 5& 6 Vict. c. 120; 10 & 11 Vict. c. 44. New Sour Watss: 5 & 6 Vict.c. 76; 7 & 8 Vict.c. 74; 13 & 14 Vict. c. 59; 18 & 19 Vict. c. 54; 25 Vict. c. 11; 29 & 30 Vict. c. 74. Sours AustRauia: 5 & 6 Vict. c. 61; 18 & 14 Vict.c. 59; 25 Vict. c. 11. Western AustTrALia: 10 Geo. 4, c. 22; 9 & 10 Vict. c. 35. Vicroria: 13 & 14 Vict. c. 59; 18 & 19 Vict. c. 55; 25 Vict. c. 11. Tasmania (Van Diemen’s Land): 5 & 6 Vict. c. 76; 7 & 8 Vict. c. 74; 18 & 14 Vict. c. 59; 25 Vict. c.11; 29 & 30 Vict. c. 74. In an Opinion given by Sir A. Cockburn, Attorney General, and Sir R. Bethell, Solicitor General, in June, 1855, they said: “ We are of opinion that the legal mode of effecting the proposed alteration in the name of the colony of Van Diemen’s Land into Tasmania, is by an Order in Coun- cil, followed by the Queen’s proclamation.” QUEENSLAND: 24 & 25 Vict. c. 44. New ZeauanD: 3 & 4 Vict. c. 62; 15 & 16 Vict. c.72; 20 & 21 Vict. c. 53; 25 & 26 Vict. c. 48. In the second class are included— Anticua: Colonial Act, No. 861, 1866; No. 4, 1867. Imperial Act, 22 & 23 Vict. c. 13 (authorizing the Crown to ratify a Colonial Act ex- tending the operation of the laws of Antigua to the island of Barbadoes). Barpadoss, 1666. See Clarke’s “ Colonial Law,” p. 179. Cape or Goop Hore: By letters patent, May, 1850, the Legislature of the Cape of Good Hope was empowered to pass ordinances establish- ing a representative government for the colony, and ordinances consti- tuting a Council and House of Assembly were accordingly passed by the Legislature and confirmed by Her Majesty: see In re The Lord Digitized by Microsoft® Colonial Legislatures by authority of the Crown. Cases relating to the Colonies. 28 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Bishop of Natal, 3 Moore, P.C. (N. 8.) 118. The constitution of the House of Assembly is affected by the provisions of stat. 28 Vict. c. 5, by which British Kaffraria was incorporated with the Cape of Good Hope. Deane : Royal proclamation, 1775; Colonial Acts, 1863, 1865. Grenada: Colonial Acts. Honpuras: Colonial Act, 16 Vict. c. 4. Montserrat: Colonial Act, No. 350, 1866. Nevis: Colonial Acts, Nos. 329 and 330, 1866. Prince Epwarp’s Istanp: Colonial Acts. Sr. Kirrs: Colonial Act, 1866. Str. Vincent: Colonial Act, 1866-1868. Virein Istanps: Colonial Act, 1867. Tospaco: Colonial Act, 1855. There is a class of colonies in which the legislative authority—gene- rally consisting of a governor and executive and legislative councils —has been constituted by charter or letters patent from the Crown, or by virtue of commissions of governors, independently of Imperial or Colonial Acts. Amongst these are included Bermupa, Britisu Guiana, Bansamas, CEYLON, GipraLTaR, Heticotanp, Hone Kone, Lasuan, Matra, Mauritius, Natat, St. Kirts, Sr. Lucta, Trivipap, Turx’s Istanp (separated from the Bahamas Government, and annexed to that of Jamaica, by Order in Council, 1848). St. HELENA is governed by Orders in Council, under the authority of stat. 3 & 4 Will. 4, c. 85, s. 112. Jamaica is in an exceptional position since the late insurrection ; for now, by 29 Vict. c. 12, the Queen is empowered to create and constitute a government in such form and with such powers as to Her Majesty may best seem fitting, and from time to time to alter or amend such government. The constitution is, in fact, abolished. And by 6 & 7 Vict. c. 13, Her Majesty is empowered to establish by Order in Council laws, institutions, and ordinances for the government of her SETTLE- MENTS ON THE Coast or Arrica and the FatxLanp Istanps. (A charter was granted to the latter in June, 1843.) The following are some of the principal decided cases which relate to different British colonies :— Barsavozs: Gill v. Barron, L. R. 2 P. CO. 157. Bermupa: Kennedy v. Trott, 6 Moore, P. ©. 449; Ex parte Jenkins, L. R. 2 P. C. 258, Britisa Guiana: Re M’Dermoit, L. R. 1 P. C. 260. Canapa: Macdonald v. Lambe, L. R. 1 P. C. 589; Renaud v. Tour- angeau, L. R. 2 P. C. 4; Kierzkowski v. Dorion, L. R. 2 P. C. 291; (Nova Scotia) Re Island of Cape Breton, 5 Moore, P.C. 259; Wallace v. M’Sweeney, L. R. 2 P. C. 180. Carr or Goop Hore: Ruding v. Smith, 2 Hage. 371; Long v. Bishop Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 29 of Capetown, 1 Moore, P. C. (N.8.) 411; Re Lord Bishop of Natal, 3 Moore, P. C. (N. 8.) 125; Bishop of Natal v. Gladstone, L. R. 3 Eq. 1; Murray v. Burgess, L. R. 1 P. C. 362. Cryton: Anstruther v. Arabin, 6 Moore, P. C. 286; Lindsay v. Duff, 15 Moore, P. C. 452. Dominica: Doyle v. Falconer, L. R. 1 P. C. 328. Faxianp Istanps: Falkland Islands Company v. The Queen, 1 Moore, P. C. (N. S.) 299; 2 Ib. 266. GipraLTaR: Lubbock v. Potts, 7 Hast, 449; Jephson v. Riera, 3 Knapp, 130. Grenada: Campbell v. Hall, Cowp. 204; 20 State Tr. 329. Honpuras: Hodge v. Attorney General of Honduras, 2 Moore, P. C. (N. 8.) 825. In a case in 1851, where two persons had been tried and convicted of piracy on the high seas, at a commission court held at Honduras, an objection was taken that British Honduras did not come within the meaning of the 5th clause of the statute 12 & 13 Vict.c. 96, as being either a colony, island, plantation, dominion, fort, or factory of Her Majesty, and the question was referred to the Law Officers, Sir J. Dodson, Queen’s Advocate, Sir J. Romilly, A.G., and Sir Alexander Cockburn, 8.G., who were of opinion that the objection was not free from doubt; “‘but upon the whole, notwithstanding whatever may have been the original state of things in that settlement, we are dis- posed to think that at present it has become a part of the dominions of Her Majesty, and that consequently the objection is invalid.” Hoxe Kone: Re Pollard, L. R. 2 P. C. 106. Jamaica: Campbell v. Hall, Cowp. 204; Beaumont v. Barrett, 1 Moore, P. ©. 75; Bowerbank v. Bishop of Jamaica, 2 Moore, P. C. 449. Matta: Rubichon v. Humble, 1 Dow. 191. Mauritius: Re Adam, 1 Moore, P. C. 670; Rouchecouste v. Dupont, 2 Moore, P. C. (N. 8.) 195; Sérandat v. Saisse, L. R. 1 P. C. 152. NataL: Re Lord Bishop of Natal, 3 Moore, P.C.(N.8.) 115; Bishop of Natal v. Gladstone, L. R. 3 Hq.1; Natal Land Company v. Good, L. R. 1 P12, , New Sours Wates: Devine v. Holloway, 14 Moore, P. C. 290; Lang v. Purves, 15 Moore, P. C. 389; Graham v. Barry, 3 Moore, P. C. (N. 8.) 207; The Queen v. Murphy, L. BR. 2 P. C. 35. NewrounpuanD: Kielley v. Carron, 4 Moore, P. C. 63. New ZEALAND: The Queen v. Clarke, 7 Moore, P. C. 77. Sr. Herena: The Queen v. Lees, 27 LJ. (Q. B.) 403. Sourm Australia: Reg. v. Hughes, L. R.1 P. C. 81. Victoria: Dill v. Murphy, 1 Moore, P. C. (N. 8.) 487; The Queen v. Dallimore, L. R. 1 P. C. 13; Rolfe & Bank of Australia v. Flower, ib. 27; The Attorney General of Victoria, ib. 147. In every colony the Governor has authority either to give or to with- ea eau, hold his assent to laws passed by the other branches or members of the ance of : a ee * Las «4 Colonial Acts legislature, and until that assent is given no such law is binding or valid. Suave anes Digitized by Microsoft® The East Indies, 30 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Laws are, in some cases, passed with suspending clauses ; z.e., although assented to by the Governor, they do not come into operation or take effect in the colony until they shall have been specially confirmed by Her Majesty. And in other cases (as, for example, in the British North America Act, 1867, 30 Vict. c. 3, s. 55) Parliament has for the same purpose empowered the Governor to reserve laws for the Crown’s assent, instead of himself assenting or refusing his assent to them. Every law which has received the Governor's assent (unless it con- tains a suspending clause) comes into operation immediately or at the time specified in the law itself. But the Crown retains power to dis- allow the law; and if such power be exercised at any time afterwards, the law ceases to have operation from the date at which such disallow- ance is published in the colony. In colonies having representative assemblies the disallowance of any law, or the Crown’s assent to a reserved bill, or the confirmation of a law passed without a suspending clause, is signified by Order in Council. In Crown colonies the allowance or disallowance of any law is gene- rally signified by a despatch. In some cases a period is limited, after the expiration of which local enactments, though not actually disallowed, cease to have the authority of law in the colony, unless before that time Her Majesty’s confirma- tion of them shall have been signified there; but the general rule is otherwise. Each Governor receives special directions not to assent to Acts except under certain conditions, which are specified in his instructions. In an opinion given by the Attorney and Solicitor General, Sir Charles Wetherell and Sir Nicolas Tindal, in March, 1828, respecting the execution of sentences passed in Jamaica upon two convicts under a particular Colonial Act, they said: ‘‘ We are of opinion that, in con- sequence of the disallowance of the Act in question, M‘Kay cannot be lawfully executed, but ought to be discharged; and that upon the same ground Hall cannot be lawfully imprisoned for the remainder of his sentence, but ought to be discharged.” The first Act of Parliament which gave authority to the Governor- General and Council at Fort William, in Bengal, to make rules and regulations “for the good order and civil government” of the East India Company’s settlement at Fort William, and to impose “ reason- able fines and forfeitures” for the breach of such rules and regulations, was 13 Geo. 8, c. 63, s. 36 (1773), usually called “The Regulating Act.” This was followed by other Acts: 21 Geo. 8, c. 70, 8. 23; 37 Geo. 3, c. 142,58. 8; 39 & 40 Geo. 3, c. 79, 8. 18; 53 Geo. 3, ¢. 155, 8.6, By Regulation IIT. of 1793, in cases coming within the jurisdiction of the zillah and city courts, for which no specific rule may exist, the Judges are to act according to justice, equity, and good conscience. Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 31 The legislative authority in the Hast Indies was vested by statute, 3 & 4 Will 4, c. 85, s. 43, in the Governor-General of India in Council, who had the power of making laws and regulations for all persons, whether British or native, foreigners or others, and for all places and things within the British territories in India, and “for all servants of the (Hast India) Company within the dominions of Princes and States in alliance with the said Company.” But it was expressly enacted that the Governor-General in Council should not have the power of making any laws or regulations contrary to that Act or the Mutiny Acts, ‘“‘or any provisions of any Act hereafter to be passed in anywise affecting the said Company, or the said territories, or the inhabitants thereof, or any laws or regulations which shall in any way affect any prerogative of the Crown, or the authority of Parliament, or the con- stitution or rights of the said Company, or any part of the unwritton laws or constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the said Crown over any part of the said territories.” This section of the Act was repealed by “The Indian Councils Act, 1861,” 24 & 25 Vict. c. 67, but was, in effect, re-enacted by sect. 22 of the last-mentioned Act. And by statute 28 Vict. c. 18, s. 1, the Governor-General of India has power, at meetings for the purpose of making laws and regulations, to make them for all British subjects of Her Majesty within the dominions of Princes and States in India in alliance with Her Majesty, whether in the service of the Government of India or otherwise. The statute 24 & 25 Vict. c. 67 provides that the Governor-General shall transmit to the Secretary of State for Tndia an authentic copy of every law or regulation assented to by him, and Her Majesty may signify through the Secretary of State for India in Council her disallowance of such law, which shall thereby become void and be annulled. The same statute also provides, by sect. 24, that no law or regulation made by the Governor-General in Council (sub- ject to the power of disallowance by the Crown as thereinbefore pro- vided) shall be deemed invalid by reason only that it affects the pre- rogative of the Crown. It also by sect. 28 enables the Governors of Madras and Bombay to make rules and orders for the conduct of busi- ness in their Councils; and by sect. 42 the Governor of each of .those presidencies in Council has power, subject to the provisions of the Act, to make laws and regulations for the peace and good government of such presidency; but by sect. 43 they are expressly prohibited from making laws or regulations on certain specified subjects. ' In illustration of the difficulties that have now and then occurred with respect to the extent of legislative authority in India, I may men- tion the question of patents. Grave doubts were entertained whether, during the government of the East India Company, the prerogative of the Crown to grant patents in India was or was not in abeyance, and Digitized by Microsoft® 32 CASES AND OPINIONS ON CONSTITUTIONAL LAW. in 1856 a patent law was passed by the Governor-General in Council : Act VI. of 1856. But this Act had not the previous sanction of the Crown, as required by statute 16 & 17 Vict. c. 95, s. 26 (now repealed by 24 & 25 Vict. c. 67), and it was doubtful, therefore, whether it was not ultra vires. It was repealed by Act IX. of 1857, and a new patent law was enacted by Act XV. of 1859; which recites that Her Majesty’s law officers had given it as their opinion that the Legislative Council of India was not competent to pass Act VI. of 1856 without previously obtaining the sanction of the Crown. This Act is now the governing Act as to patents in India. Another question arose with respect to the validity of Act I. of 1849, by which jurisdiction was given over offences committed by all British subjects in foreign States; and the Law Officers of the Crown and my- self were of opinion, in 1866, that in the case of offences committed in foreign states by native Indian subjects of the Crown, the Governor- General in Council had not the power to make laws for their apprehen- sion and punishment in British India, for we thought that the power was restricted by statute 24 & 25 Vict. c. 67, s. 22, and 28 Vict. c. 17. The government of the British territories in India was taken from the East India Company and vested in Her Majesty by the “ Act for the better Government of India,” 21 & 22 Vict. c. 106. The following chronological statement of the principal events in the history of the East India Company, may be found useful :— 1600. Dec. 31.—Charter granted by Elizabeth, limited to fourteen years. 1609. May 31—Second charter granted by James I., “for ever.” 1613.—Firman from Mogul Emperor to East India Company, allowing them to establish factories at Surat and elsewhere on Malabar Coast. This was the beginning of their establishment in India. 1616.—Hast India Company occupied Surat, Calicut (on Malabar coast), and Masulipatam (on coast of Coromandel). 1624.—Firman from Mogul Emperor, permitting East India Company to trade with Bengal at port of Piplee in Midnapore. 1638.—Fort St. George erected at Madras-patam. 1640.—East India Company first permitted to establish a factory at Hooghly (Caleutta), in the beginning of Shah Shuja’s government of Bengal. 1653.—Fort St. George erected into a Presidency. 1661. April 3.—Letters patent of Charles II., ratifying charter. 1661.—Charter granted by Charles II., granting to Hast India Com- pany power to make peace or war with any prince not Christian, and to seize and send to England unlicensed traders. 1669. March 27.—Letters patent of Charles IL, granting Bombay to Digitized by Microsoft® COMMON AND STATUTE LAW APPLICABLE TO COLONIES. 33 East India Company, “to be held of the King in free and com- mon soccage, as of the Manor of East Greenwich, on the pay- ment of the annual rent of £10.” Authority also granted to Com- pany to exercise all political powers necessary for the defence and government of the place. (Bombay was ceded to British Crown by King of Portugal under treaty, June 23, 1661.) 1673.—St. Helena granted to Hast India Company by charter. 1683-5.—‘“ The servants of the Company were now invested with unlimited power over the British people in India.”—Mill’s History of British India, i. 119. But, query, how and by what authority? + 1687.—Bombay erected into a regency, with unlimited power over the rest of the Company’s settlements. Madras erected into a corporate town, governed by mayor and aldermen. There was a discussion in the Privy Council whether the charter should be under the King’s or Company’s seal.—Mill’s History of British India, i. 121. 1689.—Instructions from Court of Directors, pointing to increase of territorial and political powers. 1698-9.—East India Company obtained permission from Emperor Aurungzebe to purchase the villages of Soota Nuttee (or Chutta Nuttee), Govindpore, and Calcutta; and began to build Fort William. The station made a Presidency. 1698. Sept. 5.—Charter by William III., incorporating a second East India Company under name of “‘ English Company,” the old Company being known as “ The London Company.” 1702. July 22.—Indenture tripartite between Queen Anne, the old Company, and the new Company. 1708. Sept. 29.—Harl Godolphin’s award. 1709. March 22.—Surrender of rights of old Company, and all rights vested in “ United Company of Merchants of England trading to the East Indies.” 1753.—Letters patent creating courts of judicature at Calcutta, Madras, and Bombay. 1756.—Suraja Dowla became Subahdar of Bengal. Aug. 5.—Calcutta taken, and English thrown into the “ Black Hole.” 1757, Jan. 2.—Calcutta retaken by Lord Clive. Battle of Plassey. (June 23.) First treaty with Nabob of Bengal. Grant to Kast India Company of twenty-four Pergunnahs. East India Company permitted to fortify Calcutta, and erect a Mint. 1760.—Treaty with Meer Kossim Ally Khan, by which Hast India Company obtained possession of Burdwan, Midnapore, and Chittagong. 1765.—Grant of the Dewanny by the Emperor Shah Allum to the East India Company of Bengal, Behar, and Orissa. ” ” ” D Digitized by Microsoft® Actions on colonial judg- ments, 34 ‘CASES AND OPINIONS ON CONSTITUTIONAL LAW. 1772.—First Regulating Act, 13 Geo. 3, c. 16. 1773.—Act authorising the erection of Supreme Court of Judicature, 13 Geo. 8, c. 63. 1833.—The East India Company ceased to be a trading company, but continued to hold the government of India in trust for the Crown, by 3 & 4 Will. 4, c. 85. 1858.—The government of India taken from the East India Company, and vested in Her Majesty, by 21 & 22 Vict. c. 106. As to actions brought in this country upon colonial judgments, see Carpenter v. Thornton, 3 B. & Al. 82 (doubtful); Henley v. Soper, 8B. & C. 16; Henderson v. Henderson, 6 Q. B. 288; Russell v. Smyth, 9 M.& W.810; Sadler v. Robins, 1 Camp. 253; Obicini v. Bligh, 8 Bing. 335; Hutchinson v. Gillespie, 25 L. J. (Ex.) 103; Frith v. Wollaston, 7 Ex. R. 194; Bank of Australia v. Nias, 16 Q. B. 717; Buchanan v. Rucker, 1 Camp. 63; 9 Hast, 192, 8.C.; Ferguson v. Mahon, 11 Ad. & Ell. 179; Cowan v. Braidwood, 1 M. & G. 882; Reynolds v. Fenton, 3 C. B. 187; Vallee v. Dumerque, 4 Ex. R. 290.: Digitized by Microsoft® CHAPTER II. ON THE ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. (1.) Oprnton of the Attorney General, Sin Epwarp NortTHey, as to Roman Catholic Priests in the Colonies. 1705. To the Right Honourable the Lords Commissioners for Trade and Plantations. May If PLEsse your Lorpsurps,—In obedience to your Lord- ships’ commands, signified to me by Mr. Popple, Jun., your Secre- tary, I have considered of the annexed extract of a letter from Colonel Seymour, Governor of Maryland, relating to the Jesuits and papists there; and the extract also sent me, of the grant of the province of Maryland to Lord Baltimore, relating to the eccle- siastical power ; and the questions proposed thereon, whether the laws of England against Romish priests are in force in the planta- tions, and whether her Majesty may not direct Jesuits, or Romish. priests, to be turned out of Maryland ? And as to the said clause in the grant of the province of Mary- land to Lord Baltimore, relating to the ecclesiastical power, I am of opinion the same doth not give him any power to do anything contrary to the ecclesiastical laws of England, but he hath only the advowsons of, and power to erect and consecrate churches, and such power as the Bishop of Durham had as Harl Palatine in his County Palatine, who was subject to the laws of England ; and the consecrations of chapels ought to be, as in England, by orthodox ministers only. As to the question, whether the laws of England against Romish priests are in force in the plantations, by the statute 27mo. of Elizabeth, cap. 2, every Jesuit, seminary priest, or other such priest, deacon, or religious or ecclesiastical person, born within this realm or any other her Majesty’s dominions, made, ordained, or Digitized by Microsoft® D2 36 CASES AND OPINIONS ON CONSTITUTIONAL LAW. professed, by any authority or jurisdiction, derived, challenged, or pretended, from the see of Rome, who shall come into, or be, or remain in any part of this realm or any other of her Majesty’s dominions, is guilty of high treason. It is plain that law extended to all the dominions the Queen had when it was made; but some doubt hath been made, whether it extendeth to dominions acquired after, as the plantations have been. By the statute 11mo. William, for preventing the further growth of Popery, it is provided that, if any popish bishop, priest, or Jesuit whatsoever, shall say mass, or exercise any other part of the office or function of a popish bishop or priest, within this realm, or the dominions thereunto belonging, such person, being thereof lawfully convicted, shall be adjudged to perpetual imprisonment, in such place within this kingdom as her Majesty, by the advice of her Privy Council, shall appoint. I am of opinion this law extends to the plantations, they being dominions belonging to the realm of England, and extends to all priests, foreigners as well as natives. As to the question, whether her Majesty may not direct Jesuits or Romish priests to be turned out of Maryland, I am of opinion, if the Jesuits or priests be aliens, not made denizens or naturalized, her Majesty may by law compel them to depart Maryland; if they be her Majesty’s natural-born subjects, they cannot be banished from her Majesty’s dominions, but may be proceeded against on the last before-mentioned law. October 18, 1705. Epw. Norraey. (2.) Joint Opinion of the Attorney and Solicitor General, Sir Pare Yorre and Siz CLrement WEARG, on Convoca- tions or Synods of the Clergy or Dissenting Ministers in New England. 1725. To their Excellencies the Lords Justices. May IT PLEASE your EXcELLENCIES,—In humble obedience to your Excellencies’ commands, signified to us by Mr. Delafaye, we have considered the several matters referred to us by letter of the 24th inst., transmitting to us the enclosed copies of some letters which his Grace the Duke of Newcastle had received from the Lord Bishop of London, concerning an address from the Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 37 General Convention of the Independent Ministers in New England, to the Lieutenant-Governor, Council, and House of Burgesses there, desiring them to call the several churches in that province, to meet, by their pastors and messengers, in a synod, to which the said Council and House of Representatives have given their consent, and directing us to inquire into this matter, and report our opinions upon several questions proposed in the said letter. And we humbly certify your Excellencies, that, as to the several matters of fact contained in the said letters and papers therewith transmitted, we have been obliged to take the same as they are therein stated, having at present no opportunity of obtaining strict regular proof; and, therefore, such parts of this report as arise out of those facts, are grounded upon a supposition that the relations contained in those letters and papers are true. The address of the General Convention of Ministers is mentioned to be in these words, to wit :— “To the very Honourable William Dummer, Hsq., Lieutenant- Governor and Commander-in-Chief, and to the Honourable the Councillors, to the Honourable the Representatives, in the great and General Court of his Majesty’s province of the Massachusetts Bay, assembled, and now sitting, a memorial and an address humbly presented. “ Ata General Convention of Ministers from several parts of the province, at Boston, 27th May, 1725: “Considering the great and visible decay of piety in the country, and the growth of many miscarriages, which we may fear has pro- voked the glorious Lord, in a series of various judgments, wonder- fully to distress us; considering also, the laudable example of our predecessors, to recover and establish the faith and order of the Gospel in the churches, and provide against what immoralities might threaten to impair them, in the way of general synods con- vened for that purpose; and considering that forty-five years have now rolled away since these churches have now seen any such convention ;—it is humbly desired that the honoured General Court would express their concern for the great interests of religion in the country, by calling the several churches in the province to meet, by their pastors and messengers, in a synod, and from thence offer their advice upon that weighty case, which the circumstances Digitized by Microsoft® 38 CASES AND OPINIONS ON CONSTITUTIONAL LAW. of the day do loudly call to be considered: ‘What are the mis- carriages whereof we have reason to think the judgments of Heaven upon us call us to be more generally sensible, and what may be the most evangelical and effectual expedients to put a stop to those or the like miscarriages?” This proposal we humbly make, in hopes that if it be prosecuted, it may be followed by many desir- able consequences, worthy the study of those whom God has made, and we are so happy to enjoy, as the nursing fathers of our churches.” Upon this address it is represented, that on the 3rd of June last, the Council voted, “That the synod and assembly proposed in this memorial will be agreeable to this Board, and the reverend min- isters are desired to take their own time for the said assembly ; and it is earnestly wished the issue thereof may be a happy reformation in all the articles of a Christian life, among his Majesty’s good subjects of this province.” That this resolution was sent down to the House of Representa- tives for concurrence, and in that House, June 11, 1715, it was read and referred to the next session, for further consideration. _ That this resolution of the House of Representatives was sent up to the Council for their concurrence, and in Council, June 19, 1725, read and concurred, and the Lieutenant-Governor subscribed his consent thereto. It appears, that against this application of the convention of ministers, for a synod, a memorial was presented by Timothy Cutler and Samuel Myles, ministers of the Established Church of England, to the Lieutenant-Governor, Council, and House of Re- presentatives, in General Court assembled, a copy of which is here- unto annexed, and contains several reasons against the address of the Convention of Ministers. Upon this memorial, the Council, on the 22nd of June, 1725, resolved, that it contained an indecent reflection on the proceedings of that Board, with several groundless insinuations, and voted that it should be dismissed, to which resolution the House of Repre- sentatives agreed. As to the questions contained in Mr. Delafaye’s letter, we beg leave to submit our thoughts upon them to your Excellencies’ con- sideration, separately and distinctly. Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 39 The first question is: whether such pastors and messengers have any power to meet in a synod without the King’s license ? Tn order to form an opinion upon this point, we have perused the charter, which is the fundamental constitution of this province, and have looked into their printed Acts of Assembly, as far as the year 1722. The charter bears date 7° Octobris, 8° Will. et Marie, a.p. 1691, and recites two former charters, one granted 3 Nov. 18 Jac. 1, and the other 4 Mar. 4 Car. 1, which was vacated, by judgment upon a scire facias, in Trinity term, 1684. In this charter, nothing is contained, tending to the establishment of any kind of church government or ecclesiastical authority in this colony, but there is the following clause: “For the greater ease and encouragement of our loving subjects inhabiting our said province or territory of Massachusetts Bay, and of such as shall come to inhabit there, we do, by these presents, for us, our heirs and successors, grant, esta- blish and ordain, that for ever hereafter there shall be a liberty of conscience allowed in the worship of God to all Christians (except papists) inhabiting, or which shall inhabit or be resident within, our said province or territory.” By the power given by this charter to the General Court or Assembly to make laws and impose taxes, they are authorised to dispose of matters and things, whereby the subjects, inhabitants of the said province, may be religiously, peaceably, and civilly governed, protected and defended, so as their good life and orderly conversation may bring the Indian natives of the country to the knowledge and obedience of the only true God ‘and Saviour of mankind, and the Christian faith, which King Charles I., in his said letters patent, declared was his royal intention, and the adven- turers’ free profession to be the. principal end of the said plantation ; and for the better maintaining liberty of conscience thereby granted to all persons, at any time being and residing within the said pro- vince or territory. In the Acts of Assembly, we find nothing relating to ecclesias- tical authority ; but there are some Acts directing that every town shall be provided of one or more able, learned and orthodox minister or ministers, without defining what they intend by that description, and there are other Acts, appointing methods for maintaining them: Digitized by Microsoft® 40 ‘CASES AND OPINIONS ON CONSTITUTIONAL LAW. And in the second year of his Majesty’s reign, an Act passed, whereby it is enacted, that upon representation made to the General Court or Assembly, that any town or district is destitute of a min- ister, qualified as by law is provided, or do neglect to make due provision for the support of their minister, the General Assembly shall provide and send an able, learned, orthodox minister, of good conversation, being first recommended by three or more of the settled ordained ministers, or may lay a tax for the maintenance of the minister. From these letters patent and laws, we cannot collect that there is any regular establishment of a national or provincial church in this colony, so as to warrant the holding of convocations or synods of the clergy; but if such synods might be holden, yet we take it to be clear, in point of law, that his Majesty’s supremacy in eccle- slastical affairs, being a branch of his prerogative, does take place in the plantations, and that synods cannot be held, nor is it lawful for the clergy to assemble as in a synod, without his royal license. The second question is: how far his Majesty’s prerogative may be concerned, in which an application, not to the Lieutenant- Governor, as representing his Majesty’s person, but to him and the Council and House of Representatives ? We conceive such application to be a contempt of his Majesty’s prerogative, as it is a public acknowledgment that that power resides in the legislative body of the province which by law is vested only in his Majesty ; and the Governor, Council, and Assembly intermeddling therein, was an invasion of his royal authority, which it was the ‘particular duty of the Governor to have withstood and rejected. The next question is: whether the consent of the Council and House of Representatives be a sufficient authority for their holding a synod ? We are of opinion such consent will not be a sufficient authority ; but we beg leave to observe, that it does not appear, by the papers transmitted to us, that the Council and Assembly have given their consent thereto, but that the House of Representatives, upon reading the resolution of the Council, adjourned the further consideration thereof till the next session, to which resolution of adjournment the Council concurred and the Governor subscribed his consent. Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 41 The next question is: if this pretended synod should be actually sitting when the Lords Justices’ directions in this matter are re- ceived by the Lieutenant-Governor, what can be done to put an end to their meeting ? We humbly apprehend, that in case such synod should be actually sitting, yet the Lieutenant-Governor, by order from his Majesty or your Excellencies, may cause them to cease their meet- ing ; and that for this purpose it may be proper that he should be directed to signify to them, that their assembly is against law, and a contempt of his Majesty’s prerogative, and that they do forbear to meet any more; and if, notwithstanding that, they shall continue to hold their assembly, that the principal actors therein be prose- cuted, by information, for a misdemeanor. But we apprehend no formal act should be done to dissolve them, because that may imply that they had aright to assemble. The principal difficulty in this case will be, if there should be an Actof the General Court or Assembly to warrant their meeting. And we conceive, that if such Act should pass in the nature only of the resolution above-mentioned, it will have no effect; but if it should have the regular form of a law, it will admit of great doubts whether it will be agreeable to the powers granted by the charter, and therefore, we humbly apprehend, it will be fit for his Majesty to disallow it. But it is difficult to give an opinion upon the effect and consequence of such an Act without seeing the Act itself. The last question is: what authority those ministers have to meet in a general convention, and being so assembled, to make and present addresses, or to do any other public act ? We apprehend that such meeting isnot unlawful provided they do not take upon them to do any authoritative act, being only a ‘yoluntary society ; and they may lawfully make addresses, either to the Crown or to the General Court or Assembly, in case the subject-matter of such addresses be lawful. It being taken notice of in the address of the General Convention of Ministers, that such a synod as is now desired was holden forty- five years ago, we cannot help observing to your Excellencies, that this computation falls in with the year 1680, and that the former charter, upon which the government of this province depended, was repealed by scire facias in the year 1684, and the new charter Digitized by Microsoft® 42 CASES AND OPINIONS ON CONSTITUTIONAL LAW. granted in the year 1691; from whence it appears, that such synod or assembly was holden a short time before the repealing of their old charter, but none since the granting of the new one. All which is humbly submitted to your Excellencies’ great wisdom. P. YORKE. September 29, 1725. C. WEARG. (3.) Oprnton of the Attorney General,Sin EpwarD NoRTHEY, on the Right of Presentation to Benefices in Virginia. 1703. On consideration of the laws of Virginia, provision being made by the Act entitled, “Church to be built, or Chapel of Ease,” for the building a church in each parish’; and by the Act entitled “ Mi- nisters to be Inducted,” that ministers of each parish shall be inducted on the presentation of the parishioners; and the church- wardens, being, by the Act entitled “ Churchwardens,” to keep the church in repair, and provide ornaments, to collect the minister's dues; and by the “ Act for the better support and maintenance of the Clergy,” provision being made for the ministers of the parishes ; and by the said Act for inducting ministers, the Governor being to induct the minister to be presented, and thereby he being consti- tuted ordinary, and as bishop of the plantation, and with a power to punish ministers preaching contrary to that law, I am of the opinion, the advowsons and the right of presentation to the churches, is subject to the laws of England, there being no express law of that plantation made further concerning the same; therefore, when the parishioners present their clerk, and he is inducted by the Governor (whois and must induct on the presentation of the parishioners),. the incumbent is in for his life, and cannot be displaced by the parishioners. If the parishioners do not present a minister to the Governor within six months after any church shall become void, the Governor, as ordinary, shall and may collate a clerk to such church by lapse, and his collatee shall hold the church for his life ; if the parishioners have never presented, they have a reasonable time to present a minister; but if they will not present, being re- quired so to do, the Governor may also, in their default, collate a Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 43 minister. In inducting ministers by the Governor, on the presen- tation of the parishes, or on his own collation, he is to see the ministers be qualified, according as that Act for inducting ministers requires. In case of the avoidance of any church, the Governor, as ordinary of the plantation, is, according to the statute of 28th Henry 8, cap. 11, s. 5, to appoint a minister to officiate till the parish shall present one, or the six months be lapsed; and such person appointed to officiate in the vacancy, is to be paid for his service out of the profits thereof, from the time the church becomes void by the law above stated. In this case no minister is to officiate as such till he hath showed to the Governor heis quali- fied, according as the said Act for induction directs; if the vestry do not levy the tobacco for the minister, the courts there must decree the same to be levied. July 29, 1703. Epwarp Norrsey. (4.) OPINION of the Attorney General, Sin Epwarp NortHey, on the granting of Letters of Administration on the same Estate, both in England and in the Colonies. 1707. To the Right Honourable the Lords Commissioners for Trade and Plantations. May If PLEASE vour Lorpsuips,—In obedience to your Lord- ships’ commands, signified to me by Mr. Popple, I have considered of the enclosed extract of Lord Cornbury’s instructions, and of his letter relating to the granting letters of administration; and your Lordships having required my opinion thereon, and what may be fit for her Majesty to do in all the plantations on the like occasions, I do most humbly certify to your Lordships, that by law, where a man dies intestate in the plantations, having a personal estate there, and also any personal estate, or debts owing, here in England, the right of granting administration belongs to the Archbishop of Canterbury; and if administration be granted, in the plantations, also (which may be), that ad- ministrator will be accountable to the administrator in England, but will be allowed the payment of just debts, if paid in the order the law allows of—that is to say, the whole personal estate, in Eng- land and the plantations, will be liable to all the intestate’s debts Digitized by Microsoft® 44 CASES AND OPINIONS ON CONSTITUTIONAL LAW. in both places, and out of the whole, first, debts owing to her Majesty, then judgments, statutes and recognizances, then bonds, then debts, without speciality, both there and in England, are to be satisfied; and the administrator in the plantations will not be allowed the payment of any debts, without speciality, if there be debts of a superior nature unsatisfied in England ; for every admin- istrator is bound to take care to apply the intestate’s assets to discharge his debts, in the order the law directs, and it matters not whether the debts were contracted in England or the plantations. If there be debts of equal nature in England and the plantations, the administrator may discharge which he pleases, before he be sued for any other of the like nature. This, indeed, is some diffi- culty on administrators, but it is no more there than in England ; and attempts have been made by Acts of Assembly, in some of the plantations—particularly, as I remember, in Pennsylvania—to ap- propriate the effects in the plantations, of persons dying there, to the discharging debts contracted there; but those Acts have been repealed here, as being prejudicial to this kingdom. I am also of opinion, that when the letters of administration arrive at the plan- tations, under the seal of the Prerogative Court of Canterbury, they are to be allowed there, and the authority of the administration granted in the plantations from that time ceases. March, 1707. Epw. NortHey. (5.) OBseRvations by the King’s Advocate, Str JAMES MARRIOTT, on enforcing residence at a living in Barbadoes, in the Case of the Rev. Mr. Barnarp (1). 1764. It is stated that the Governor of Barbadoes institutes to all livings in the island of Barbadoes. That no law of the island enforces residence. That the Royal institutions are silent. That there is no judicature there to inflict the penalty of the Act of Parliament. The question is, how residence can be enforeed ? It appears that the commission granted by George I. to Bishop (1) From a MS. in the possession of Sir Travers Twiss, Queen’s Advocate, which formerly belonged to Sir James Marriott, King’s Advocate, Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 45 Gibson, then Bishop of London, empowering him to act in all respects by his commissaries as diocesan of the colonies, was per- sonal, and was never obeyed nor held to be sufficient. The jurisdiction of the Bishops of London in the colonies, on the foot of custom, is not established nor exercised effectually ; nor does anything appear further than that, upon the first setting-up a Virginia Company, they were recommended by the then Government to apply to the Bishop of London to assist them in sending some clergymen of the Church of England to reside in that infant colony. Nothing more has passed since, than merely on a supposition that the Bishops of Tondon had jurisdiction (of some sort or other) in the: colonies; and so all the instructions to the gover- nors have ordered them to give countenance to the Bishop of London’s jurisdiction accordingly. The jurisdiction, therefore, of the Bishops of London and all other ecclesiastical authority is out of the present question. It seems to rest entirely on the Act of the 21st Hen. 8, called the “ Act of Non-residence,” to-the penalty of which Mr. Barnard is liable whenever any person shall sue him for the same. He is liable to the penalty of £10 for every default. The word “ default” is defined by Bracton to be an omission of anything which ought to be done; if so, the penalty for every month’s omission will fall heavily on Mr. Barnard in the course of every year’s absence, and he may be sued for the amount of all the gross sum chargeable for every month’s non-residence. But if the word “default ” does not mean omission, toties quoties, but a defect in the course of a year taken altogether, and legal conviction thereupon, then the penalty of £10 for such annual default would certainly be insufficient to enforce residence as is necessary, and Mr. Barnard will avail himself of the advantage. But there seems a difficulty in complying with the request of the Governor, that his Majesty should grant fresh instructions to his governors in the colonies in cases of non-residence, to declare the living vacant, and to institute other rectors. It is apprehended that his Majesty cannot empower any gover- nor, by their authority under his commission, to deprive clergymen of their freeholds. His Majesty’s supremacy is exercised in eccle- siastical causes, as well as in civil, in the same manner and with Digitized by Microsoft® 46 CASES AND OPINIONS ON CONSTITUTIONAL LAW. the same limitations; and his ecclesiastical courts and temporal courts can only deprive the subject on legal conviction of offences. His Majesty’s judges are the keepers of his Majesty’s conscience ; they are answerable for the decrees they make, and it is the happi- ness and prerogative of his Majesty to judge no man’s life or property in person. If his Majesty, as supreme in all causes, ecclesiastical and civil, could by his bare instructions authorize the inflicting of penalties, he might erect of his pleasure any sort of courts whatsoever, which he cannot; and, therefore, if the penalty of the 21st of Hen. 8 is insufficient in case of non-residence in the colonies, it should seem a proper object for the consideration of Parliament to find an effectual remedy ; for. the legality of deprivation in consequence of the royal instructions would certainly be called in question by the American clergy. December 25, 1764. (6.) Opinion of the King’s Advocate, Stn CHRISTOPHER Rosinson, on a Marriage performed by a Methodist Minister in Newfoundland. ‘Doctors’ Commons, March 8, 1817. My Lorp,—I am honoured with your Lordship’s commands, signified in Mr. Goulburn’s letter of the 21st ultimo, transmitting the copy of a despatch from Vice-Admiral Pickmore, Governor of Newfoundland, relative to the conduct of a Methodist minister in that colony in performing the marriage ceremony without a com- pliance with the formalities of the Church of England, and in opposition to the orders of the Governor, a clergyman of the Church of England being actually resident in the colony. And your Lordship is pleased to request that I would take the same into consideration, and report to your Lordship my opinion, whether marriages so celebrated are legal and valid ; and if illegal, whether the person so celebrating them is liable to any and what penalties? In obedience to your Lordship’s directions, I have considered the same, and beg leave to refer to a report of the 11th of May, 1812, which I had the honour to make, jointly with the Attorney and Solicitor General, to the Secretary of State for the Colonial Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 47 Departinent, on the subject of marriages in Newfoundland, in which the general principle of the law of England was stated, as requiring the celebration of marriage by religious ceremonies for the perfect regularity of the marriage contract. In the case represented in these papers, the certificate describes the marriage to have been celebrated according to the form of the Church of England by George Cubit, Methodist minister, “set apart (as it is expressed in his pretended letters of orders) by the authority of four private ministers in connection with the con- ference of the people called Methodists.” It is not the case, therefore, of a person assuming ostensibly the character of a person in holy orders. But the question is, whether a marriage celebrated by a minister as above described, unconnected with local customs, or with any circumstances of special exception, is a legal and valid marriage ? The mere civil contract of parties which has constituted mar- riage in some countries has been considered not to be sufficient alone to perfect that relation by the ecclesiastical law of England ; and I believe it may be stated, that there has not been any positive decision to the contrary in any Court. The issue of parties cohabiting under such contract, alone, without subsequent espousals in facie ecclesia, has been held ille- gitimate. It has been determined, also, by high authority at common law, that the woman was not entitled to dower; and the conclusion is drawn from that case, in the words of the learned editor, “that neither the contract, nor the sentence of the ecclesiastical court (decreeing the marriage to be solemnized, without the actual celebration), was a marriage.” 2 The terms in which the several Acts of Parliament in the reigns of Henry VIII. and Edward VI., and 12 Charles 2, c. 33, speak of marriage, further support the conclusion that no other form of mar riage than that by celebration in facie ecclesi# has been considered to constitute a perfect and legal marriage in the contemplation of the law of this country. The same construction has been put on marriages celebrated by ministers not ordained by episcopal ordination, even subsequent to the Toleration Act (1). The principle of that decision, also, is (1) Haydon v. Gould, 1 Salkeld, 119. Digitized by Microsoft® 48 CASES AND OPINIONS ON CONSTITUTIONAL LAW. in some degree incidentally confirmed by a form of pleading in one case (I), setting forth, as a ground of prohibition to the pro- ceedings of the ecclesiastical courts against the parties for incon- tinence, that the marriage in that instance had been celebrated under special exemptions granted to the conventicles by the Tole- ration Act, though the clause of the Toleration Act on which the suggestion was founded does not appear to be correctly recited. It may be observed, also, that there has been a positive exemp- tion of the same kind by Act of Parliament in Ireland, making the marriages of Dissenters in their own congregations legal. On these grounds I am of opinion that the marriage described is not a legal and valid marriage. On the other point, whether the person so celebrating marriage is liable to any and what penalties? I cannot advise that there could be any proceedings founded on the ecclesiastical law that would be applicable to the circumstances of this case. But it must be an offence, I conceive, of the nature of a misdemeanor, to assume public functions of this kind without authority, to the breach of public order, and to the prejudice of individuals; and I presume it might be punished as such by proceedings at law under the direction of the law officers of the settlement. Curist. ROBINSON. (7.) Joint Oprnton of the King’s Advocate, Str CHRISTOPHER Rosinson, and the Attorney and Solicitor General, Sir Joun 8. CopLry and Str CoarLes WETHERELL, on the Duties of the Governor and Bishop of a Colony in collating and instituting to Benefices. 1825. My Lorp,—Having considered the statements contained in your Lordship’s letter, transmitting the instructions of the Governor of Barbadves, and the patent of appointment of the Bishop, and re- quiring that we would report thereon— “Whether the collation to benefices, the granting marriage licenses, probate of wills, and letters of administration, continue vested in the Governor, in the same manner, and to the same extent, as before the erection of the new bishopric ; or whether (1) Hutchinson v. Brooksbanke, Levinz, part 3, 376. Digitized by Microsoft® o ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 49 that event has diminished, or altered, the power and duties of the Governor, in any of those respects; and especially that we will state what are the relative duties of the Governor and the Bishop, in collating and granting institution to benefices in the island, in the gift of the Crown.” In obedience to your Lordship’s commands, we have the honour to report that we think the appointment of the Bishop has made no alteration in the Governor’s power to grant marriage licenses, probates, and administrations ; and we think the right of the Governor to collate to benefices in the gift of the Crown, as is done in England, in some cases of free chapels, is not affected by the power given to the Bishop to grant institution, which may apply to the patronage of private individuals. If there be no such patronage in private individuals, the inference from the terms of the Bishop’s appointment will show, we apprehend, that it was the intention that he should collate in all cases, and if so, we think it proper to alter the instructions to the Governor, and direct him to present to the Bishop for institution. CHRISTOPHER ROBINSON. July 16, 1825. J. 8. Copiey. CHARLES WETHERELL. (8.j) Opinion of the King’s Advocate, Str CHRISTOPHER Roginson, on the appointment of a Roman Catholic Bishop in Canada. Doctors’ Commons, February 21, 1826. My Lorp,—In obedience to your Lordship’s commands, I have considered the question proposed to me by your Lordship respect- ing the form of appointment of a Catholic Bishop in Canada, by direct authority of his Majesty, and I think it is one of very con- siderable difficulty. It has hitherto been avoided by the expedient of adopting, by Royal approbation, the coadjutor of the preced- ing bishop, nominated cwm futwra successione, and consecrated in Canada under the authority of the Pope’s bull. But it may be doubted, I think, whether that mode was consistent with the Royal prerogative before the cession of Canada, under the French law, or more particularly with the provisions of the statute 14 Geo. 3, c. 83, which permits in Canada the free exercise of the religion of the Church of Rome, subject to the King’s supremacy declared and Digitized by Microsoft® 50 CASES AND OPINIONS ON CONSTITUTIONAL LAW. established by 1 Eliz. c. 1, which last statute considered the King’s supremacy as essentially opposed to the exercise of any authority by the Pope in any parts of the dominions belonging to the Imperial Crown of this realm. The Governor appears to recommend that the late coadjutor, who has been already consecrated, may be appointed Bishop of Quebec by letters patent issued under the provincial seal. The appointment of a bishop isa very high act of the royal prerogative, and has never yet been exercised, so far as I know, in any other manner, in the colonies, than by letters patent under the Great Seal. Whether that form of appointment could now be used of a Catholic Bishop, is a question on which I can- not presume to advise, and it will be proper that it should be referred to the Attorney and Solicitor General. Ifthe appointment can be made under the provincial seal, it must be, I presume, on special in- structions or warrant from his Majesty. The questions to be referred should, I humbly submit, embrace all these points—whether the ap- pointment of a Catholic Bishop in Canada can legally be made by his Majesty, by letters patent under the Great Seal, or under the pro- vincial seal, under special instructions or warrant from his Majesty ? Earl Bathurst, &e. CHRISTOPHER RoBINSON. (9.) Jornt Opinion of the King’s Advocate, Sir JoHn Dopson, and the Attorney and Solicitor,General, Sir Joun CampBeELL and Sir R. M. Rours, on the appointment of a Suf- Sragan Bishop of Montreal. Doctors’ Commons, February 3, 1836. My Lorp,—We have received your Lordship’s letter of the 2nd instant, relative to the appointment of a suffragan Bishop of Mon- treal, and desiring us to report our opinion, whether under the sta- tute of 26 Hen. 8, respecting Suffragan Bishops, or for any other reason, there exists any objection in point of law to the instrument of appointment, a copy of which your Lordship has sent to us? We beg leave in answer to state to your Lordship that we have taken the subject into consideration, and we do not see any objection in point of law, under the statute of Hen. 8, or otherwise, to the pro. posed instrument. J. Dopson. The Lord Glenelg, J. CAMPBELL. &e. &e. &e. R. M. Roxrs. Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 51 (10.) Joint Opinton of the Attorney and Solicitor General, Str Joan Campsex and Sir R. M. Rous, on the incorpora- tion of a Roman Catholic College in Prince Edward’s Island. Temple, May 31, 1888. My Lorp,—We have to acknowledge the receipt of your Lord- ship’s letter of the 16th ultimo, referring us to an Act passed by the Legislature of Prince Edward’s Island (No. 448), entitled “ An Act to incorporate the Trustees of St. Andrew’s College, and to re- peal a certain Act therein mentioned,” and requesting that we would state our joint opinion whether there is any reason deducible from the Act of Supremacy of Queen Elizabeth, or from any other statute or law, which should prevent the confirmation of this law by Her Majesty ? We beg leave to state to your Lordship, that, in our opinion, there is nothing in the Act of Supremacy, taken in conjunc- tion with the subsequent statutes relative to Her Majesty’s Roman Catholic subjects, which should prevent the confirmation of this law by Her Majesty in Council. J. CAMPBELL. The Lord Glenelg, R. M. Ror. &e. &e. &e. (11.) Jour Opinion of the Attorney and Solicitor General, Sir Freperick Pottock and Sir Wititiam Wess Foiiett, on the Authority of the Crown to interfere with and make Regu- lations respecting the appointment of Roman Catholic Bishops in Canada. Temple, April 11, 1842. Sir,—We have the honour to acknowledge the receipt of your letter dated the 16th of October last, stating that the Reverend M. Power having been deputed by the Roman Catholic Bishop of Montreal to submit for the approval of Her Majesty’s Government a proposition for dividing the diocese of Kingston into two distinct sees, and for “ the formation of an ecclesiastical province to be composed of all the British North American provinces under one Archbishop or one Metropolitan See ;” and further stating, that you had received Lord Stanley’s directions to state that, as preli- minary to advising Her Majesty as to the course which it might be expedient to take in respect to this application, his Lordship would wish us to report to him, our opinion, whether, adverting to the Act of Supremacy, and any other Acts of Parliament relating to the exercise within the Queen’s dominions of the religion of the Digitized by Microsoft® ae 52 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Church of Rome, and also adverting to the terms of the capitula- tion of Quebec and Montreal, in 1759 and 1760, and to the statutes 14 Geo. 3, c. 83, 81 Geo. 3, c. 81, and 3 & 4 Vict. c. 35, any autho- rity is vested in the Queen to regulate, or in any manner interfere with, the appointment of Roman Catholic bishops or archbishops in Canada, or to determine what the number or what the character of the ecclesiastical functionaries of the Roman Catholic Church in that province shall be ? In obedience to his Lordship’s commands, we have considered the subject referred to us with great care, and beg leave humbly to report that we think, under the terms of the Treaty of Paris of 1793, and of the stat. 14 Geo. 3, c. 53, s.5, and with reference to the provisions of the statute of 1 Eliz., Her Majesty has an authority vested in her to interfere with, and to make regulations respecting, the appointment of Roman Catholic bishops and archbishops in Canada ; and with respect to the particular proposal which is men- tioned in the letter, we think that the consent of the Crown is properly asked for, and that it may be lawfully given to, the division of the diocese of Kingston into two sees, if Her Majesty, in her dis- cretion, shall think fit to do so. But, as regards that part of the proposal which relates to the formation of an ecclesiastical province to be composed of all the British provinces in North America, and which would extend there- fore over provinces not conquered, and in which there are no stipu- lations respecting the maintenance of the Roman Catholic religion, either by treaty or Act of Parliament: we think that the Crown cannot be properly called upon to give its sanction, and that it has no legal power to do so. -Frepericx Potiock G. W. Hope, Esq. W. W. Foutert. (12.) Jor Oprnton of the Queen’s Advocate, Sir Joun Dopson, and the Attorney and Solicitor General, Sir FRE- DERICK THEsicEr and Sir FirzRoy KExty, on the status of Clergymen of the Church of England, and the jurisdiction of the Bishop, in Van Diemen’s Land. Doctors’ Commons, December 27, 1845. My Lorp,—In compliance with the request contained in the letter of Mr. Under-Secretary Stephen of the 18th of October last, Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 53 we have referred to the letter of Mr. Under-Secretary Hope of the 28th of August last, and to the several Acts of the Legislature of Van Diemen’s Land now laid before us; and with reference to the questions submitted to us touching the proceedings adopted against certain clergymen in that colony, and the status of clergymen there, we have the honour to report to your Lordship, that hav- ing also considered the points suggested by Archdeacon Marriott, we are of opinion: that upon the appointment of a chaplain to offi- ciate in Van Diemen’s Land, whether by the Government here or in the colony, he cannot lawfully act without being licensed by the Bishop of Tasmania. That, upon refusal by the Bishop to license, an appeal lies to the Archbishop of Canterbury, and to him only: that a license may be revoked by the Bishop. That upon the revocation of a license no formal trial is necessary : that the Bishop, however, should not act but’ upon what he deems sufficient cause, or without giving the party accused an opportunity of answering the charge against him. That there is no form of institution or induction, or analogous to either, in. Van Diemen’s Land; the appointment and the license are all that can take place: that the Bishop may try, convict, and punish for ecclesiastical offences, without the aid of any new Court to be created by the local legislature or otherwise; but he must proceed judicially, with the assistance of such officers as are created by the letters patent, and decide according to the best of his judg- ment; there must be a distinct charge, the accused must have due notice, and a fair opportunity of answering and defending himself, and of examining his witnesses, and cross-examining the witnesses against him: that the 3 & 4 Vict. c. 86 does not extend to the colonies; that, therefore, if either of the clergymen in question was unlicensed, he could not legally officiate at all, and that if any license had been granted, the revocation of it by the Bishop was valid. J. Dopson. The Right Hon. the Lord Stanley, Freperick THESIGER. &e. &e. &e. FirzRoy Ketty. Digitized by Microsoft® 54 CASES AND OPINIONS ON CONSTITUTIONAL LAW. (18.) Joint Oprnton of the Queen’s Advocate, Str J. D. Harvie, and the Attorney and Solicitor General, Six Fre- DERICK THESIGER and Sir FrrzRoy Key, on the patronage of Benefices and the appointment of Missionaries in Prince Edward's Island. Doctors’ Commons, August 24, 1852. Sirn,—We were favoured with a letter from Mr. Elliot on the 12th instant, in which he stated that he was directed by you to request that we would intimate our opinion on the following point :— There appeared to be in Prince Edward’s Island two classes of ministers of the Church of England: some commonly designated as rectors, who enjoy, as such, certain lands attached to parish churches; others who are merely stationed at places in the island, and employed as missionaries of the Society for the Propagation of the Gospel. Mr. Elliot also stated that he was directed to request that we would take into consideration the Local Act, 43 Geo. 3, c. 6, the annexed extracts from the commission, and instructions from the Governor of Prince Edward’s Island, and the inclosed corre- spondence, and report to you our opinion— What are the respective rights of the Governor, the parishioners, and the Bishop, in respect to the institution, presentation, and collation or induction of rectors ? Has the Governor any, and what, rights or duties in respect of the appointment of missionaries of the Society for the Propagation of the Gospel to minister in the island ? In obedience to your commands, we have perused the several documents accompanying Mr. Elliot’s letter, and have the honour to report that, by the Colonial Act, 43 Geo. 3, c. 6, the patronage of all benefices is vested in the parishioners, who are entitled to pre- sent to them whenever vacancies occur. The Lieutenant-Governor, upon such a presentation, is required to induct. The clerk so presented must, however, produce a license from the Bishop of London, or from the Bishop of Nova Scotia, and he must also have publicly declared his assent and consent to the Book of Common Prayer, and must have subscribed to be conformable to the Orders and Constitution of the Church of England, and the laws there Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 55 established; but the Lieutenant-Governor having ascertained that these preliminaries have been complied with, his office is merely ministerial, and he has no power to refuse induction. The Bishop’s functions are confined to licensing the clerk, who is presented (of course after due examination), if such clerk has not already obtained a license from the Bishop of London. The Lieutenant-Governor has no rights or duties in respect of the appointment of missionaries of the Society for the Propagation of the Gospel, but such missionaries cannot officiate without the license of the Bishop; and if they should do so, or fail to declare their assent to the Book of Common Prayer, or to subscribe the Articles and Canons of the Church, we think that, according to the spirit of the Colonial Act, they may be suspended and silenced by the Lieutenant-Governor and the Council. J. D. Harpine. The Right Hon. Sir J. Pakington, Bart., Frep. THESIGER. &e. &e. &e. FitzRoy Kgtty. NOTES TO CHAPTER II. The foregoing Opinions give the opportunity of discussing the ques- tion of the status of the Church of England in the colonies, and how far the ecclesiastical law of England is applicable to that Church there. Of late years the question has been fully considered, and the law settled by the Judicial Committee of the Privy Council. First, in the case of Long v. Bishop of Capetown, 1 Moore, P. C. (N.S.) 411, where Mr. Long, the appellant, claiming to be the incumbent of a parish in the colony of the Cape of Good Hope, refused to obey certain orders which the Bishop of the diocese, in the exercise of his episcopal authority, thought fit to issue, and for such disobedience the Bishop issued against Mr. Long sentences, first of suspension, and afterwards of deprivation. The validity of these sentences was disputed, first in the colonial court, and afterwards on appeal here. The first question which the Judicial Committee considered was the authority which the Bishop possessed under and by virtue of his letters patent at the time when the sen- tences were pronounced, And they held that the letters patent under which the Bishop acted, having been issued after a constitutional government had been established in the Cape of Good Hope, were in- effectual to create any jurisdiction, ecclesiastical or civil, within the colony. The next point was, whether the defect of coercive jurisdic- Digitized by Microsoft® 56 CASES AND OPINIONS ON CONSTITUTIONAL LAW. tion under the letters patent had been supplied by the voluntary sub- mission of Mr. Long? The Judicial Committee held that Mr. Long, by taking the oath of canonical obedience to the Bishop, and accepting from him a license to officiate and have the care of souls within a parish in the colony, and by accepting the appointment to the living under a deed which expressly contemplates, as one means of avoidance, the removal of the incumbent for any lawful cause, did voluntarily submit himself to the authority of the Bishop to such an extent as to enable the Bishop to deprive him of his benefice for any lawful cause. But this was on the principle of contract, the Court holding that for the purpose of the contract between the plaintiff and defendant, it was to take them as having contracted that the laws of the Church of Eng- land should, though only so far as applicable in the colony, govern both. The next question was, whether Mr. Long had been guilty of any offences which, by the laws of the Church of England, warranted the sentences against him? This depended mainly on the point whether Mr. Long was jnstified in refusing to take the steps which the Bishop required him to take in order to procure the election of a dele- gate for the parish to a synod convened by the Bishop. The Judicial Committee held that the Bishop had no power of convening a synod without the consent of either the Crown or the colonial legislature, for the purpose of making laws binding upon members of the Church of England; that the acts which they assumed to pass were illegal ; and that Mr. Long was justified in refusing to assist in calling into existence a body which he was not bound by any law or duty to ac- knowledge. The oath of canonical obedience only means that the clergyman will obey all such commands as the Bishop by law is autho- rized to impose. The Court, therefore, were of opinion that the order of suspension and subsequent sentence of deprivation were not justified, and were invalid. In giving judgment, the Court said: ‘‘ The Church of England in places where there is no Church established by law is in the same situation with any other religious body—in no better, but in no worse position; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body, which will be binding on those who expressly, or by im- plication, have assented to them.” Another point considered by the Judicial Committee in this case was, whether, supposing the sentences of the Bishop to be erroneous, Mr. Long had any remedy except by appeal to the Archbishop of Canter- bury under the letters patent; and they held that even if Mr. Long might have appealed to the Archbishop—a question which they thought it unnecessary and inexpedient to discuss, as the suit in re- spect of which the appeal was brought respected a temporal right, in which the appellant alleged that he had been injured—he was not bound to appeal to the Archbishop, but was at liberty to resort to the Supreme Court of the colony. This case was followed by Re The Lord Bishop of Natal, 3 Moore, Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 57 P. C. (N.S.) 115, which was a petition presented to Her Majesty in Council by Dr. Colenso, Bishop of Natal, complaining of the illegality of certain proceedings taken against him, and alleging the nullity of a sentence of deposition for heresy pronounced against him by the Bishop of Capetown, as metropolitan of that diocese. The petition was re- ferred to the Judicial Committee, and several of the questions which had been considered in the case of Long v. The Bishop of Capetown came again befure the Court. They held that, although in a Crown colony, properly so called, or in cases where the letters patent constituting a bishopric and appointing a bishop in a colony was made in pursuance of an Act of Parliament, a bishopric may be constituted and ecclesias- tical jurisdiction conferred by the sole authority of the Crown, yet that the letters patent of the Crown will not have any such effect or ope- ration in a colony or settlement which is possessed of an independent legislature. They held, therefore, that in the case before them the Crown had no power to confer any jurisdiction, or exercise legal authority, upon the Metropolitan of Capetown over the suffragan bishops, or over any other person ; and they said that in the case of a settled colony the ecclesiastical law of England cannot be treated as part of the law which the settlers carried with them from the mother- country (1). They said: “ After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom. It may-be true that the Crown, as legal head of the Church, has a right to command the con- secration of a bishop, but it has no power to assign to him any diocese, or give him any sphere of action within the United Kingdom. The United Church of England and Ireland is not a part of the constitution in any colonial settlement, nor can its authorities, nor those who bear office in it, claim to be recognized by the law of the colony otherwise than as members ofa voluntary association.” As to the question whether, supposing that the Bishop of Capetown had no jurisdiction by law, he obtained it by contract or submission on the part of the Bishop of Natal by virtue of his oath of canonical obedience, they held that it was not legally competent to the Bishop of Natal to give, or to the Bishop of Capetown to accept or exercise, any such jurisdiction. The Bishop of Natal afterwards sued the Trustees of the Colonial ‘ Bishoprics’ Fund for arrears of his salary, which they, in consequence of the decision in the last case, had withheld from him. This case, Bishop of Natal v. Gladstone, L R. 3 Eq. 1, came before Lord ‘Romilly, M.R., in 1866, and he pronounced a decree in favour of the plaintiff. His Lordship held that the law, as declared by the Judi- (1) In RB. v. Brampton, 10 Hast, 288, Lord Ellenborough, O.J., said: “In the absence of any evidence to the contrary, I may suppose that the law of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the King's troops, who would impliedly carry that law with them.”’—See ante, p. 18. Digitized by Microsoft® 58 CASES AND OPINIONS ON CONSTITUTIONAL LAW. cial Committee, left all the episcopal functions to the Bishop exactly as by the law of the Church of England they belonged to his office of Bishop, and that he could perform all the acts which belong toa Bishop within the diocese of Natal which he could do if he were the Bishop of an English diocese—“ with this exception, that he cannot enforce the execution of these orders without having recourse to the civil tribunals for that purpose.” With respect to the passage in the judgment of the Judicial Committee in Long v. Bishop of Capetown, 1 Moore, P. C. (N.S.) 461, already quoted, as to the status of the Church of England in the colonies, his Lordship said: ‘‘ These expressions have created some alarm, which has, as it appears to me, arisen from an imperfect appre- hension of what is meant by them. They do not mean, as some per- sons seem to have supposed, that because the members of such a Church constituted a voluntary association, they may adopt any doctrines and ordinances they please, and still belong to the Church of England. All that really is meant by these words is, that where there is no State religion established by the Legislature in any colony, and in such a colony is found a number of persons who are members of the Church of England, and who establish a Church there with the doctrines, rights, and ordinances of the Church of England, it is a part of the Church of England, and the members of it are, by implied agreement, bound by all its laws. In other words, the association is bound by the doctrines, rights, rules, and ordinances of the Church of England, except so far as any statutes may exist which (though relating to this subject) are confined in their operation to the limits of the United Kingdom of England and Ireland.” The Master of the Rolls added: “The members of the Church in South Africa may create an ecclesiastical tribunal to try ecclesiastical matters between themselves, and may agree that the decisions of such a tribunal shall be final whatever may be their nature or effect. Upon this being proved the civil tribunal would enforce such decisions against all the persons who had agreed to be members of such an association— that is, against all the persons who had agreed to be bound by these deci- sions, and it would do so without inquiring into the propriety of such decisions. But such an association would be distinct from, and form no part of, the Church of England, whether it did or did not call itself in union and full communion with the Church of England. It would strictly and properly be an Episcopal Church, not of, but in South Africa, as it is the Episcopal Church in Scotland, not of Scotland.” See the observations of the Judicial Committee in Ex parte Jenkins, L. R. 2P.C, 270: “It seems to have been supposed that the cases of Long v. Bishop of Capetown, and In re The Lord Bishop of Natal, are authorities for the proposition that the Bishop of Newfoundland has no legal status and cannot lawfully exercise any episcopal function within the Ber- mudas. The first case certainly does not go the length of that pro- position, for it decided only that the Crown cannot confer coercive authority on a Bishop in a colony possessing a constitutional form of Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 59 government without the consent of the Legislature. The Judicial Committee, in deciding the case of The Bishop of Natal v. Gladstone, has certainly used expressions which would restrain the power of the Crown in the creation of bishops within even narrower limits. It has been argued that the Master of the Rolls, in his judgment in The Bishop of Natal v. Gladstone, has greatly qualified the effect of the former judg- ment of the Privy Council. Their Lordships think that in the present case they are not called upon to express an opinion whether these two decisions can be reconciled; for they are clearly of opinion that the question whether the Bishop of Newfoundland has any lawful status, or can exercise any episcopal function, and particularly that of institu- tion, in the Bermudas, has been set at rest conclusively by the repeated recognition of his status and functions by the colonial legislature.” In The Bishop of Natal v. Gladstone, the Master of the Rolls held that Dr. Colenso was Bishop of Natal in every sense of the word, and would remain so until he died or resigned, or until the letters patent appoint- ing him were revoked, or until he were in some manner lawfully deprived of his see. But, in order to guard against a misapprehension which might arise from these words as if it were his opinion that the plaintiff could not by any means be removed from being Bishop of Natal, his Lordship added: “Such is not my opinion. I wish it to be distinctly understood that I do not mean to assert that as soon as the plaintiff’s nomination by the Crown, and his appointment by letters patent, had been consummated by his consecration by the Archbishop, whatever might be his conduct or opinions, he must fur ever remain Bishop of Natal and enjoy the endowments attached to that office, even though the letters patent appointing him had never been revoked. On the contrary, I entertain no doubt that if he had not performed his part in the contract entered into by him, that if he had failed to comply with ‘the covenants of his trust,’ he could not compel payment of his. stipend. The contract he has entered into is involved in the words ‘ Bishop of the Church of England as by law established.’ The duties, the teaching, the superintendence, the pastoral care, the watching of his flock, which appertains to a Bishop, he undertook and was bound to perform; and if, by his own wilful default, this has become impos- sible, I do not mean to lay down that he could maintain a suit in this Court for the payment of his salary as Bishop of Natal.” The following Opinion was afterwards given by the Solicitor General (Sir John Coleridge), Sir Roundell Palmer, and Dr. Deane, in April, 1869 :— Query.—“ Assuming that the present Bishop of Natal has been guilty of an ecclesiastical offence, what steps can be taken to bring him to trial, and before what tribunal ?” Opinion.—‘‘ Any tribunal competent to decide whether the doctrinal Opinions advocated by Dr. Colenso, the present Bishop of Natal, are in accordance with the doctrines of the Church of England or not, must be sought for in South Africa or in England. . Digitized by Microsoft® 60 CASES AND OPINIONS ON CONSTITUTIONAL LAW. “The decision of the Judicial Committee in The Bishop of Natal’s Case, 3 Moore, P. C.(N.S.) 115, is an authority for saying that the Bishop of Capetown has no jurisdiction over Dr. Colenso. “Taking the cases of The Bishop of Natal, and Long v. The Bishop of Capetown, 1 Moore, P. C. (N.S.) 411, together, they appear to deter- mine that there is no jurisdiction ecclesiastical in the metropolitan dio- cese (so to call it) of Capetown which can reach the Bishop of Natal. “The colonial decision in The Bishop of Natal v. Green, sent with the Case, throws some doubt upon the condition of the colony of Natal, as assumed by the Privy Council in The Bishop of Natal’s Case ; and it may be that the letters patent granted to Dr. Colenso were valid. But if that should be so we cannot see that any tribunal, civil, criminal, or ecclesiastical, exists in Natal which can determine whether the doctrinal opinions of Dr. Colenso are erroneous or not, and can enforce its decision. “The authority of the judgment of the Master of the Rolls in The Bishop of Natal v. Gladstone, L. R. 3 Eq. p. 1, must not be carried be- yond the point determined—viz., that the Bishop of Natal, retaining his status as bishop, was entitled to receive the endowment of the see. “The Archbishop of Canterbury, whatever may be his authority over his own suffragans, has, in our opinion, no jurisdiction, inherent or conferred by the Crown or by Parliament, which can enable him to inquire, as a Court, into the doctrines advocated by the Bishop. of Natal. “Tt has been suggested that the Crown as visitor, or as supreme in causes ecclesiastical, or by virtue and in exercise of some other sup- posed power, may be able, either by Commissioners specially appointed, or by means of the Privy Council, to hear and determine the points raised against Dr. Colenso. “ We are unable to find the slightest ground on which this suggestion can be supported. ‘The Crown is supreme over all causes ecclesiastical in the same, and in no other sense, and to no greater extent than the Crown is supreme over causes temporal—that is, by law, and by means of the various established courts of law. “The Submission of the Clergy Act (25 Hen. 8, c. 19) gave no such power to the Crown. Section 4 of that Act made it lawful for the parties grieved by any decision of an ecclesiastical judge in England to appeal to the King in Chancery, for which court of appeal the Judi- cial Committee of the Privy Council is now substituted. This is an appellate, and not an original jurisdiction. “ The High Commission Court, established by 1 Eliz.c. 1, is abolished by 16 Ch. 1, c. 11, and the revival of the High Commission Court or any similar court is especially provided against by 18 Ch. 2, st. 1, c. 12, and 1 Will. & M. Sess. 2, c. 2. ‘With reference to the authorities referred to, intermediate in date between 1 Eliz. c. 1 and 16 Ch. 1, ¢. 11, it is hardly necessary to observe that they state the law as it was in force under the former of = Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 61 these statutes, and which ceased to be in force on the passing of the latter. “No argument in favour of the power of the Crown can be derived from 3 & 4 Will. 4, c. 41,8. 4, by which it is enacted that it shall be lawful for his Majesty ‘to refer to the Judicial Committee for hearing or consideration any such other matters as his Majesty shall think fit ; and such Committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.’ “To make this section applicable to the judicial determination of an ecclesiastical matter would be in effect to restore the High Commission Court. The section is to be taken as referring to questions not of judi- cial cognizance on which the Crown may desire to be solemnly advised by persons conversant with the law. “The only remaining consideration is whether the merits of the case can be raised on a scire facias to revoke the letters patent granted to the Bishop of Natal. “This manner of raising the question between the Bishop of Natal and his opponents was suggested by the Master of the Rolls in the case of The Bishop of Natal v. Gladstone. “The only ground on which the letters patent would be revoked by such a proceeding is, in our opinion, that the letters were ab initio void, as having issued improvidently. This would leave the merits un- touched. ‘Indeed, if the view taken in The Bishop of Natal v. Green as to the status of the colony be correct, the letters patent might possibly be held valid. ‘“‘ We are therefore of opinion that no means at present exist for trying before any tribunal competent to decide the question whether or no Dr. Colenso, the present Bishop of Natal, has advocated doctrinal opinions not in accordance with the doctrines held by the Church of England; and, assuming the present Bishop of Natal to have been guilty of an ecclesiastical offence, no steps can be taken to bring him, as such Bishop, before any tribunal. “ We do not, however, think that, upon the present materials, it would be satisfactory or proper for us to enter into the question, whether, if Dr. Colenso were present within the jurisdiction of an English ecclesi- astical court, and were in this country to commit any offence against the laws ecclesiastical, he could, or not, be proceeded against, under the Church Discipline Act, as a clerk in holy orders of the Church of England.” The judgment of the Master of the Rolls, however, in The Bishop of Natal v. Gladstone, shows that there is a mode by which the question of heresy might be tried—namely, by the trustees of the Colonial Bishoprics’ Fund refusing to pay the Bishop his salary on the alleged ground of heretical opinions, and distinctly raising this question in a suit instituted by him to enforce payment. The case might thus be decided in the Court of Chancery and carried on appeal to the House of Lords, Digitized by Microsoft® The East Indies. 62 CASES AND OPINIONS ON CONSTITUTIONAL LAW. In an appeal from two orders of the Court of Chancery in Bermuda (Ex parte Jenkins, L. R. 2 P. C. 258), upon an application on behalf of the appellant, a clergyman, for a writ de vi laicé removendé to remove any opposition to his being inducted into a parish church as rector, the Judicial Committee decided that the Court of Chancery was justi- fied in refusing the writ on the ground that the power of issuing such a writ had not been expressly imposed upon the Court of Chancery in Bermuda by the Act of the colony creating that Court. They said that it would be an inconvenient precedent to imply the existence of a writ not known to the Court itself as necessary to the enforcement of the legal right obstructed merely from the creation of the Court, and a general grant in large words of general jurisdiction. As to the writ de vi laicd removendd, the Court said that it might be regarded at the present day as an obsolete proceeding: see Fitz. Nat. Brev. D. 54. They held that the appellant was duly presented by the Governor to the rectory, and was instituted by the lawful authority of the Bishop of Newfoundland. They said that it was a fact which would not be disputed, that for more than a century the Crown possessed the power of collating to all the vacant benefices in the Bermudas by direct nomination, a power which it exercised by delegation to the successive Governors, who were usually described as Ordinaries in their patents. But when a Bishop or ecclesiastical ordinary was duly appointed, the Crown, as patron, thought proper to leave to the Governor power of nominating the clerk, but recognized, by the letters patent granted to the Bishop, the power of institution belonging to his office. As to the ecclesiastical authority of the Governor of a colony as ordinary, see Basham v. Lumley, 3 C. and P. 489. As toa sentence of suspension passed by the Bishop of Jamaica, and reversed for irregularity, the party not having’ been cited to answer any particular charge, see Bowerbank v. The Bishop of Jamaica, 2 Moore, P. C. 449. As to the authority of a synod of a Church in connection with the Church of Scotland in Australia, see Lang v. Purves, 15 Moore, P. C. 389, and com- pare Craigdallie v. Aikman, 1 Dow. 1; and as to a synod of the Dutch Reformed Church at the Cape of Good Hope, Murray v. Burgess, L. R. 1 P. 0. 362. In 1813, when the British territories in India were under the government of the East India Company, the first bishopric was estab- lished there; and although the Bishop was appointed and consecrated under the authority of the Crown, it was thought necessary or right to obtain the sanction of the Legislature, and that an Act of Parliament (53 Geo. 3. c. 155, 8. 49) should be passed to give the Bishop legal status and authority. In 1833, two additional bishoprics were founded, one at Madras and the other at Bombay, and an Act was passed (3 & 4 Will. 4, c. 85), by the 98rd section of which it was enacted that the Crown should have power to assign limits to the dioceses of the three bishoprics, and from time to time to alter and vary the same limits . respectively, and to grant to such Bishops, within their dioceses, eccle- Digitized by Microsoft® ECCLESIASTICAL LAW APPLICABLE TO THE COLONIES. 63 siastical jurisdiction ; and by section 94, the Bishop of Calcutta was to be Metropolitan in India. On a question which came before the Queen’s Advocate (Sir Travers Twiss), Mr. Pontifex, and myself, in 1868, as to whether the Crown had the power to vary by letters patent the limits of the dioceses of Calcutta, Madras, and Bombay, we were of opinion that, having regard to the statute 3 & 4 Will. 4, c. 85, s. 98, the Crown had such power ; but it was so doubtful whether there was any power in the Crown to alter and vary by letters patent the limits of the existing archdeaconries of Calcutta, Madras, and Bombay respectively, that we advised that, if the scheme were carried out, an Act of Parliament should be obtained for the purpose. We added that the Crown, in our opinion, had not the power to grant by letters patent to the bishops of the respective dioceses in India, jurisdiction over congregations of the Church of England in places not within the dominions of the Crown. If a will be made in this country and proved in the Prerogative Effect of Court, the probate will not extend to property in the colonies. Nor pees will a grant of administration obtained here, although the intestate Pa ily was resident and died in this country: Burn v. Cole, Amb. 416 ; Atkins Colonies. v. Smith, 2 Atk. 63; Thorne v. Watkins, 2 Ves. Sen. 35. And if the testator was domiciled here, the Judge of Probate in the colony is bound by the probate here, and ought to grant it to the same person: per Lord Mansfield, in Burn v. Cole, ubi sup. If the testator is domiciled in a colony, the will should be proved in the Probate Court there, and a copy transmitted to, and proved in, the Ecclesiastical Court here, as an original will: Williams on Executors, 303, 308 (4th edit.). See Hare v. Nasmyth, 2 Add. 25. A probate obtained in the proper ecclesiastical court here extends to all the personal property of the deceased, wherever situate at the time of his death, including the colonies and any country abroad: Whyte v. Rose, 3 Q. B. 493 Gin Error); see Swift v. Nun, 26 L. J. (Ex.) (N.S.) 365. A grant of administration obtained here will not extend to the colonies, though the intestate died and was resident here. It has been held that a foreign plantation, though an inheritance, was to be looked upon as a chattel to pay debts, and a testamentary thing : Noell v. Robinson, 2 Ventr. 358 ; see also Blankard v. Galdy, 4 Mod. 215. And as to property in any of the British plantations in America, see statute 5 Geo. 2, c. 7, repealed as to negroes by statute 37 Geo. 3, c. 119: see Thomson v. Grant, 1 Russ. 540; and Manning v. Spooner, 3 Ves. 118. The compensation money for slaves in Jamaica was held to be legal assets in Lyon v. Colville, 1 Coll. 449. The term British plantations in America, in statute 5 Geo. 2, c. 7, includes the West Indies, and it has been held that although estates there were made legal assets by that statute, they might be devised so as to make them equitable assets: Charlton v. Wright, 12 Sim. 274. As to. the Hast Indies, see statute 39 & 40 Geo. 3, c. 79, s. 21; 55 Geo. 3, c. 84; Act of the Governor- General of India in Council VII. of 1849, and Act IT. of 1850. Digitized by Microsoft® 64 CASES AND OPINIONS ON CONSTITUTIONAL LAW. CHAPTER III. ON THE POWERS AND DUTIES AND THE CIVIL AND CRIMINAL LIABILITIES OF GOVERNORS OF COLONIES. (1.) Jomnr Opinion of the Attorney and Solicitor General, Str Tuomas Trevor and Sir Jonn Hawtes, as to how a Lieutenant-Governor could be tried for Misdemeanor. 1701. To the Right Honourable the Lords Commissioners for Trade and Plantations. In answer to your Lordships’ queries, signified to us by Mr. Popple the 30th of April last, relating to offences committed by Captain Norton, and against the Act for regulating abuses in the plantation trade : First: We are of opinion that, for such offence or wilful neglect, the Lieutenant-Governor, Captain Norton, may be indicted and tried in the Court of King’s Bench, by virtue of the Act for punishing governors of plantations for offences committed by them in the plantations. But we doubt whether he will incur the penalty of £1000 by the Act, made the 7th and 8th of the King, for regu- lating abuses in the plantation trade; for the words of the Act extend only to Governors and Commanders-in-Chief, and is given only for the offence of not taking the oaths or putting the Acts in execution ; but he will be finable at the discretion of the Court. Secondly: We think a foreigner endenized is qualified to be master of a ship trading to the plantations, unless there be a pro- vision in the letters patent of denization, that such denization shall, uot enable him to be master of a ship, which is usually inserted for that purpose; but hath been omitted in some denizations of French Protestants since the reign of his present Majesty, by Orde, of Council. Thirdly: We are of opinion, that a Scotchman is to be accounted Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 65 as an Englishman within the Act, every Scotchman being a natural- born subject. THos. TREVOR. June 4, 1701. Joun HAWLES. (2.) Oprnions of Mr. Renve (afterwards Chief Justice of the Common Pleas), and Mr. Lurwycur, King’s Counsel, on the effect of the Demise of the Crown on a Colonial Act granting a salary to the Governor of a Colony. 1727. T am of opinion that this Act is not determined by the demise of his Majesty King George, but will remain in force as long as Mr. Worsley continues Governor of Barbadoes, and shall perso- nally reside in the island. It is observable that the tax, é&c., is granted to his Majesty, his heirs and successors, during the con- tinuance of the Act: it is limited to continue for so long time as Mr. Worsley shall continue to be his Majesty's Captain-General, &ec. Yet, I conceive these words will have the same construction as if it had been limited to continue so long as Mr. Worsley should be the King’s Captain-General ; and as the King, in law, never dies, I conceive the demise of King George I. will not be a deter- mination of this Act. January 15, 1727. Tuomas REEVE. Iam of opinion that upon the demise of his late Majesty, the Act for granting the £6000 per annum did not determine; for I think it is clear that the Governor’s commission continued for the space of six months after the death of the King, by virtue of an Act of Parliament in Queen Anne’s reign, unless the commission was superseded in the meantime; and if the commission was determined by ending at the six months, I am of opinion that the - Act had determined also, though the Governor had been appointed afterwards, because he once ceased to be Governor under any com- mission. But if the fact was, that within the six months he had a new commission, it is doubtful whether his continuing Governor without intermission will not be sufficient to entitle him to the £6000 per annum by the Act; and upon consideration of these F Digitized by Microsoft® 66 CASES AND OPINIONS ON CONSTITUTIONAL LAW. three clauses, I am inclinable to think that it will entitle him so long as he remains Governor, and continues without intermission ; but perhaps it might be made plainer by seeing the whole Act. February 1, 1728. T. Lurwycue. (3.) Jornt Opinion of the Attorney and Solicitor General, Siz Tuomas Trevor and Sir JoHn HAaw.kEs, on the determs- nation of a Governor's Commission. 1700. To the Right Honourable the Lords Commissioners of Trade and Plantations. May IT PLEASE your Lorpsuips,—Upon perusal of their Ex-- cellencies the Lords Justices’ letter to the President and Council of Nevis, dated the 29th September, 1698, and of a copy of a commission granted by his Majesty to Colonel Fox, dated the 15th November, 1699, we are humbly of opinion, that the powers and authorities given by the Lords Justices to the Pre- sident and Council of Nevis were determined by the commis- sion to Colonel Fox, upon the arrival of Colonel Fox there and publication of his commission, and we conceive he might upon his coming there before Colonel Codrington, by virtue of his commission, dispossess the President and Council, and assume to himself that government until the arrival of Colonel Codrington - there. THOMAS TREVOR. August 9, 1700. Joun Haw es. (4.) Opinion of Mr. West (afterwards Lord Chancellor of Ireland), as to whether a Governor can vote as a Councillor. 1725. To the Right Honourable the Lords Commissioners for Trade and Plantations. My Lorps,—In obedience to your Lordships’ commands, signi- fied to me by letter from Mr. Popple, dated the 24th day of November last, I have considered the following quere, whether a Governor can vote, as a Councillor, in the passing of bills, when the Council sit in their legislative capacity ? Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 67 Upon consideration of which, and of the Governor’s commission and instructions, Iam of opinion that a Governor cannot, by law, vote as a Councillor in the passing of bills, when the Council sit in their legislative capacity. January 8, 1724-5. Ricuarp WEst. (5.) Opinion of the Attorney General, Sir Joun WILLEs, on the right of the Proprietor of Maryland to appoint to Offices under the King’s Charter. 1737, Quzre 1. Whether by the Charter of Maryland, the Lord Pro- prietor has not a right to the nomination of all officers in general, civil as well as military ? Answer. I am of opinion that by the Charter of Maryland, the Lord Proprietor has a right to nominate and appoint all officers in general, as well civil as military. Quere 2. Whether there is anything particular in the nature of the office of Treasurer, of either shore, to exempt it from the said nomination ? Answer. It does not appear to me, that there is anything so particular in the nature of the office of Treasurer, of either shore, as to take the right of nomination to this office from the Lord Pro- prietor, and to give it to any other persons. Quere 3. Whether a few precedents in this case, of a Treasurer being appointed by tripartite concurrence of both Houses of Assembly and the Governor, can or do overthrow his Lordship’s right ? Answer. All the precedents, except one, being between 1692 and 1716, when my Lord Baltimore was out of possession, I am of opinion that they will not overthrow his Lordship’s right, founded upon such plain words in the Charter. Quere 4. Whether the precedents, hereunto annexed, do divest the Lord Proprietor of his right of nomination to the office of Trea- surer or Treasurers, so nominated, they giving the security the law directs ? Answer. The Treasurer or Treasurers, when nominated by the F2 Digitized by Microsoft® 68 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Proprietor, must give such security as the law directs. To the other part of this guere I have given an answer already. January 22, 1736-7. J. WILLES. (6.) Jomnt Opinion of the Attorney and Solicitor General, Sir Wittiam Garrow and Str SamuEL SHEPHERD, as to the devolution of the authority of Governor of a Colony. Lincoln’s Inn, November 24, 1814. My Lorp,—We have had the honour to receive your Lordship’s letter of yesterday's date, stating that his Royal Highness the Prince Regent, having judged it expedient to direct Lieutenant- General Sir G. Prevost, his Majesty’s Captain-General and Governor-in-Chief of the provinces of Upper and Lower Canada, to deliver over all the civil and military powers with which he may be invested, to the senior General Officer for the time being in Canada; and doubts having been entertained whether, consistently with the terms of his Majesty’s commission under the great seal, bearing date the 21st day of October, 1811, he can comply with such instruction, so long as he may remain in the province, in which the severity of the season may for a length of time detain him, your Lordship is pleased to transmit to us the extract of your despatch to Sir G. Prevost, which conveys the instruction before mentioned, together with the copy of Sir G. Prevost’s com- mission and other papers, and to desire that we will take the same into our consideration, and report to your Lordship, for the infor- mation of his Royal Highness the Prince Regent, our opinion upon the point in question, and also whether any Act short of an abso- lute and entire revocation of the commission can, during the pre- sence of Sir G. Prevost in the province, suspend the powers with. which he is invested by the said commission. We have accordingly considered the same, and have the honour to report to your Lordship, that we observe by the commission to. which your Lordship has been pleased to refer us, that his Majesty directed the Governor, in the case of his absence from either of the provinces of Upper Canada and Lower Canada, to deliver the seal Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 69 of the said provinces respectively into the charge of the Lieutenant- Governor or person administering the government there, until his Majesty should think fit to authorize him, by instrument under his royal sign-manual, to commit the custody thereof to such person as might be appointed by his Majesty for that purpose. It does not appear that in any case but that of absence the authority of the Governor could be devolved on any other person ; we beg there- fore very humbly to submit as our opinion, that the Lieutenant- General and Governor cannot, consistently with the terms of his commission, deliver over his civil and military powers to any other person during his personal residence within the local limits of his Government; and we further beg leave to submit as our opinion, that no act short of an absolute and entire revocation of the com~- mission can, during the presence of Sir G. Prevost in the provinces, suspend the powers with which he is invested by the said com- mission. The Right Hon. Earl of Bathurst, W. Garrow. &. &. &. S, SHEPHERD. (7.) Case and Joint Opinion of the Attorney and Solicitor General, Six J. ScarLerr and Str Epwarp B. Suapen, as to power of Governor to revoke assignment of a Convict. December 24, 1829. Case.—The Secretary of State is desirous to be advised whether, under the 9th section of 9 Geo. 4, c. 83, a Governor can revoke the assignment of a convict of whose sentence it is not intended to grant any remission, general or partial. Opinion.—We are of opinion that under the 9th section of 9 Geo. 4, c. 83, a Governor can revoke the assignment of a convict of whose sentence it is not intended to grant any remission, and we think that there is nothing either in the context or the apparent policy of the Act which militates against this construction. J. SCARLETT. Epwarp B. SUGDEN. Digitized by Microsoft® 70 CASES AND OPINIONS ON CONSTITUTIONAL LAW. (8.) Jornr Oprnion of the Attorney and Solicitor General, Sir Joun Campsett and Sin R. M. Rowre, as to power of Governor to suspend a Colonial Officer appointed by Order in Couneil. Temple, August 6, 1838. My Lorp,—We have had the honour to receive your Lordship’s letter of the 4th instant, asking our opinion on the question whether, under 4 & 5 Will. 4, c. 95, the Governor of South Australia has the power to suspend any colonial officer appointed by an Order in Council, and whether notwithstanding an Act of Suspension any such officer would continue de jure to hold his appointment? In answer, we beg to state that in our opinion the Governor has the power of suspension, and that an officer so suspended would from thenceforth cease to be entitled to exercise any of the functions or to derive any of the emoluments of his office till her Majesty’s pleasure should be made known. The officer must be considered holding during the pleasure of the Crown, and we think the Governor has the power of suspension under his commission and instructions from the Crown. This power is not conferred upon him by 4 & 5 Will. 4,¢. 95, but there is nothing in that Act by which the prerogative of the Crown in this respect is abridged. The Lord Glenelg, J. CAMPBELL. &e. &e. &e. R. M. Rorrs. (9.) Joint Opinion of the King’s Advocate, Sin C. Rosry- son, and the Attorney and Solicitor General, Sir R. GiFFoRD and Str J. Copuey, on the notification of the Demise of thé Crown in a Colony. Doctors’ Commons, May 21, 1821. My Lorp,—We are honoured with your Lordship’s commands of the 14th instant, transmitting the copy of a despatch from the officer administering the civil government of the island of Ceylon, stating the circumstances under which the clergy and the Supreme Court of Ceylon had acted upon the information of his late Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 71 Majesty’s demise, although not conveyed to them through the channel of the Governor ; and requesting instructions how far their conduct in doing so was legal. And your Lordship is pleased to desire that we would take the same into consideration, and report to your Lordship our opinion : 1, Whether a notification fromthe Bishop to his clergy is not a sufficient authority to them to change the Church Service of the colony according to the form prescribed by his Majesty’s Order in Council even before any proclamation has been issued by the Governor ? 2. Whether the courts of justice of the colony, after such change in the Church Service, can properly retain the form of process used by them, or whether they are at liberty to change such fornr upon what they may consider satisfactory evidence of the demise of the Crown, even although that event may not have been officially notified in a proclamation by the Governor ? In obedience to your Lordship’s commands, we have the honour to report that we are of opinion that the notification of the Go- vernor is not absolutely necessary to establish legal evidence of the demise of the Crown. We think the Bishop’s directions to his clergy, founded on the Order in Council, might be sufficient authority to them to make the change prescribed, and that the Supreme Court of Justice might also make the necessary change in the forms of process, although no proclamation had been issued by the Governor. But we think such an act should be considered as an exception to the more re- gular mode of waiting for public instructions from the Governor, and to be justified only by peculiar circumstances, and on the ground of the inconvenience that might be likely to ensue from longer delay. CHRISTOPHER ROBINSON. The Earl Bathurst, R. GIFFORD. &e. &e. &e. J. Copley. Digitized by Microsoft® 72 CASES AND OPINIONS ON CONSTITUTIONAL LAW. (10.) Jornr Opinion of the Attorney and Solicitor General, Sim Joun Campsenn and Six R. M. Rowrs, as to effect of Demise of the Crown on the Commission of the Governor of a Colony. Temple, March 12, 1839. My Lorp,—We have to acknowledge the receipt of a letter from Lord Glenelg, dated the 18th ultimo, transmitting to us the copy of a despatch from the Governor of the Cape of Good Hope, with the reports therein enclosed of the proceedings which were had in October last, before the Commissioners for the trial of offences committed at sea, on the trial of the commander and first mate of the barque “Blake” for murder, and of another mate for cruelly ill-treating an apprentice. His Lordship requested us to report our opinion, whether on the ground stated by the prisoners’ counsel, or on any other grounds, there is any sufficient reason for doubting the validity of the commission under which the prisoners were tried. The doubts suggested as to the validity of the commission were founded on the circumstance that more than six calendar months had, at the date of the trial (October, 1838), elapsed since the demise of his late Majesty King William IV. But we are of opinion that these doubts are altogether unfounded. By the 1 Will. 4, c. 4, it was expressly enacted that no commission or warrant for the exercise of any office or employment, civil or military, within any of his Majesty’s plantations or foreign possessions should, by reason of any future demise of the Crown, become void until the expiration of eighteen calendar months next after any such demise; all commissions, therefore, which were in force at the Cape of Good Hope on the day of the death of his late Majesty (June 20, 1837), continued in force until the 20th of December, 1838, which was long after the trial. The same statute continued in force all colonial commissions which existed at the demise of George IV. until they should be superseded by a new commission. And this explains the circumstance stated by the Commissioners, that their commission bears date the 10th of March, 1832, being nearly two years after the death of King George IV. The Marquess of Normanby, J. CAMPBELL. &e. &e. &e. R. M. Rotrs. Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 73 (11.) Jomnt Oprnion of the Attorney and Solicitor General, Sir Joun Campsect and Sir Toomas WILDE, as to appoint- ment of Members of the Legislative Council of Canada. Temple, March 20, 1841. My Lorp,—With reference to Mr. Vernon Smith’s letter of this day’s date, respecting the mode of appointing the members of the first Legislative Council of the United Province of Canada, under 3 & 4 Vict. c. 35, s. 4, we have the honour to report to your Lord- ship that we are clearly of opinion they must all be appointed by one instrument under the royal sign-manual, authorizing the Governor of Canada in Her Majesty’s name, by one instrument under the great seal of the province, to summon them. The instrument under the royal sign-manual will follow the words of the Act of Parliament, and authorize the Governor by an instrument under the great seal to summon; but we humbly con- ceive that instructions should be given to the Governor to execute this authority by one instrument under the great seal of the pro- vince, naming all the members of the Legislative Council. The Right Hon. Lord John Russell, J. CAMPBELL. &. &e. &e. THos. WILDE. (12.) Jomnr Orrnion of the Queen’s Advocate, Sz J. Dopson, and the Attorney and Solicitor General, Sin FREDERICK Pottock and Str Winuiam Fouuett, as to Power of the Government of Canada to grant an exclusive Right of Ferry between that Province and the United States. Temple, March 12, 1842. Srr,—We beg to acknowledge the receipt of your letter of the 24th ult., wherein you state you had been directed by Lord Stanley to transmit to us the enclosed copy of a despatch from the Governor- General of Canada, submitting a question which has arisen respect- ing the power of the Provincial Government to grant an exclusive right of ferriage over rivers dividing the British territory from the adjoining States. And you were pleased to request we would take this subject into our consideration, and report to his Lordship our opinion whether Digitized by Microsoft® 14 CASES AND OPINIONS ON CONSTITUTIONAL LAW. the Government of Canada possesses the exclusive right of regu- lating the ferries between that province and the United States. In obedience to his Lordship’s commands, we have taken this matter into our consideration, and beg to report that if we are to understand the question submitted to us to be, whether the Govern- ment of Canada has the power to grant to any individual the right of conveying passengers to and from the American shore to the exclusion of all other persons, English or American, we are of opinion that the Governor of Canada has no such legal power; and if it be desirable that any regulations should be adopted with respect to the intercourse between the two shores, we think that it should be made the subject of a treaty between the two govern- ments, and be sanctioned by an Act of the Legislature. J. Dopson. G. W. Hope, Esq., Frep. PoLiocx. &e. &. &e. W. W. Fouert. (13.) Eatract from Joint Orrnion of the Attorney and Soli- citor General, Str Freprerick PoLiock and Str WILLIAM Fouuert, on the necessity of the concurrence of the Council of a Colony in granting leave of absence to Public Officers. Temple, December 17, 1842. In obedience to your Lordship’s commands, we have taken this matter into our consideration, and have the honour to report, for your Lordship’s information, that we are of opinion that neither on any of the grounds suggested, nor on any other grounds that occur to us, can the concurrence of the Council in St. Lucia, or in any other colony, be lawfully dispensed with in granting leave of absence to public officers generally, or to any particular class of public officers. The first Act, 22 Geo. 3, c. 75, is expressly made to apply to any colony or plantation now or at any time thereafter belonging to the Crown of Great Britain ; there is, therefore, no foundation for the suggestion that the statute does not apply to colonies acquired since the passing of the statute. The second statute, 54 Geo. 8, c. 61, extends the enactments of the first to all officers however appointed, if appointed by any in- Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 75 strument; and it appears to us that the two statutes taken together are of universal application to all the colonies, and to all officers appointed by any instrument whatever. Any inconvenience arising from this must be remedied by the Legislature. FREDERICK POLLOCK. W. W. Fouuett. (14.) Jorr Oprnton of the Attorney and Solicitor General, Sir J. Jervis and Sir J. Romy, on the Grant of a Condi- tional Pardon for Murder in British Guiana. Temple, December 12, 1849. My Lorp,—We are honoured with your Lordship’s command, contained in Mr. Merivale’s letter of the 21st ultimo, in which he stated that he was directed by your Lordship to transmit to us the enclosed papers, with a request that we would favour you with our joint opinion on the following question :— A criminal has been convicted of murder by the Supreme Court of Criminal Justice in Demerara and Exssequibo. The Governor wishes to extend to this offender the mercy of the Crown, subject to the condition of imprisonment for life—a punishment which is recognized by the law of British Guiana. But he has been advised that his power to do so is doubtful. It is derived from his commission, which authorizes him to grant to any offender “a free and unconditional pardon, or a pardon subject to such conditions as by any law in force in the said colony may be thereunto annexed.” But it is stated that by the Dutch law, in force in British Guiana prior to the capitulation, no pardon could be granted by the Governor in cases of murder; and, consequently, that no such law is in force in the colony as is contemplated by the commission. The questions, therefore, on which our advice was requested, were— 1st. Whether we considered that the Governor possesses the power which he wishes to exercise? and, 2nd. If we should be of cpinion that he does not, what is the most advisable course, both in order to grant the pardon in the present instance, subject to the requisite condition, and also to obviate the occurrence of the same difficulty ? Digitized by Microsoft® 76 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Mr. Merivale also stated that he was directed to annex copies of the Governor’s despatch on this subject, and the opinion given by the Attorney General of British Guiana, and extracts of so much of the Governor’s commission and instructions as regard the question. In obedience to your Lordship’s command, we have considered the various documents submitted to us, and have the honour to report that, in our opinion, the Governor does possess the power which he wishes to exercise. The conditions referred to in the patent do not depend upon the nature of the crime pardoned, but upon the legality of the conditions themselves. The Right Hon. Earl Grey, JOHN JERVIS. &e. &e. &e. Joun Romitty. (15.) Jomnr Opinion of the Attorney and Solicitor General, Sin A. E. Cocxpurn and Sir Richard BETHELL, on the Grant of a Conditional Pardon by the Governor of a Colony in virtue of the general power to pardon conveyed by his Commission. Temple, February 16, 1853. My Lorp Duxz,—We were honoured with your commands, con- tained in Mr. Merivale’s letter of the 9th instant, in which he stated that he was directed by your Grace to request that we would favour you with an answer to the following question :— Whether the Governor of Barbadoes can, by virtue of the power entrusted to him by his commission, commute sentences of death passed by a criminal court in Barbadoes to imprisonment for a term of years? Mr. Merivale was also directed to annex an extract of the com- mission of the Governor, and also a despatch received on the subject from the Governor of Barbadoes. In obedience to your Grace’s commands, we have considered the documents transmitted to us, and have the honour to report that the power to grant conditional pardons has always been held to be incidental to the general power to pardon vested in the Crown as part of its prerogative. By means of such conditional pardons, the Crown was enabled to commute the punishment of death for that of transportation, a Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 77 punishment unknown to the common law, independently of any statutory enactment. We are of opinion, that the power to pardon, conferred on the Governor of Barbadoes by his commission, carries with it the power to commute the sentence of death for a minor punishment, by means of a pardon conditional upon the delinquent undergoing: the substituted punishment. His Grace the Duke of Newcastle, A. HE. CockBurn. &e. &e. &e. RicHarp BEtTHELL. (16.) Jormnr-Opinion of the Attorney and Solicitor General, Sir A. E. Cocgsurn and Sir R. Beruett, that the Power of Pardon is not vested in the Superintendent of Honduras. Temple, July 3, 1854. Srr,—We were honoured with his Grace the Duke of Newcastle’s commands, contained in Mr. Merivale’s letter of the 13th April last, in which he stated that he was directed by his Grace to trans- mit to us copy of a correspondence between the Colonial Office and the Local Government of Honduras, on the question of the exercise of the prerogative of mercy by the Superintendent of that settlement. And he further stated that he was to request that we would take these papers into consideration, and report to his Grace whether, in our opinion, the Superintendent of Honduras possesses, under his commission from the Governor of Jamaica, and the Act of the public meeting (sic) “to amend the system of government of Bri- tish Honduras” (copies of which were annexed), or otherwise, power to exercise her Majesty’s prerogative of pardon. Mr. Merivale concluded by stating that his Grace did not think it necessary to do more than direct our attention to the peculiar circumstances of the settlement of Honduras, and the Acts relating to it (57 Geo. 3, c. 53, and 59 Geo. 3, c. 54) which had been fre- quently under our and our predecessors’ consideration : and also to a letter from Her Majesty’s Law Officers, dated the 14th March, 1851, in which the opinion was intimated that the recitals of those Acts are not at present fully applicable to the settlement. Tn obedience to the above request, we have fully considered the Acts of Parliament, the Superintendent’s commission, and also the Digitized by Microsoft® 78 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Colonial Act to which the letter refers, and have the honour to report— That we think the power to exercise Her Majesty’s prerogative of pardon was not, at the time when the Act of the public meeting was passed, a power that was vested in, or could be lawfully exer- cised by, the Superintendent; and that section 44 of the last- mentioned Act must be construed as vesting in the officer adminis- tering the government of Honduras such powers only as theretofore had been lawfully exercised by the Superintendent ; and that in our opinion the Superintendent of Honduras does not possess the power to exercise Her Majesty’s prerogative of pardon. The Right Hon. Sir G. Grey, Bart., A. E. Cocxsurn. &e. &e. &e. RicHarpD BETHELL. (17.) Jomnr Opinion of the Attorney and Solicitor General, Sir R. Betoery and Sir H.8. Keatine, as to the legal meaning of the phrase “ Governor in Council.” Lincoln’s Inn, December 17, 1857. Sir,—We were honoured with your commands, signified in Mr. Merivale’s letter of the 11th of December instant, in which he stated that he was directed by you to send to us copy of a despatch from the Governor of the Bahamas, and to request that we would favour you with our advice as to the answer to be returned to the Governor's question : namely, whether, where any act is to be done under colonial enactment (confirmed by the Crown) by the Gover- nor, in either of the three forms specified in the despatch, the personal presence of the Governor in the Council is necessary to the legal performance of the act? In obedience to the request contained in Mr. Merivale’s letter, we have the honour to report— That we have considered the despatch from the Governor of the Bahamas. The royal instructions treat the presence of the Governor as necessary at every meeting of the Executive Council. They dispense with his presence in cases only of some insuperable impediment. Whenever the Governor is physically able to attend, he is bound to be present. Of the three forms of expression cited in the de- spatch as contained in Colonial Acts confirmed by the Crown, we Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 79 are of opinion that where a ‘colonial enactment enjoins certain things to be done “by the Governor in Council,” the Governor must be present, and the royal instructions do not control the Act so as to admit of the things being done in the absence of the Governor, even though such absence be caused by some insuperable impediment. Secondly and Thirdly—Where the Colonial Acts enjoin certain things to be done “by the Governor, with the advice of the Exe- cutive Council,” or simply to be done “ with the advice and consent of the Executive Council,” the forms of expression do not require the actual presence of the Governor in Council as a necessary condition, but the enactments, of course, do not control or dispense with the necessity of obeying the instructions; and in these two latter cases, therefore, whenever the attendance of the Governor is prevented by an insuperable impediment, the Act may be done by the Council, with the subsequent concurrence of the Governor. The Right Hon. H. Labouchere, M.P., §RicHarp BETHELL. &e. &e. &e. Henry 8. Katine. (18.) Oprrnton of the Solicitor General, Sik Hucu Cairns, as to Legality of Government of a Colony administered by Officer appointed by the Governor in the absence of the Officer on whom that function devolved by Royal Charter. Lincoln’s Inn, July, 1858. Srr,—I am honoured with Mr. Merivale’s letter of the 10th instant, stating that he was directed by you to transmit to me for my opinion thereon the following Case, with its enclosures :— _ By the Royal Charter of 1850, which provides for the govern- ment of the Gold Coast, it was ordained that in case of the Governor’s death or absence, the gover nment should devolve on the Lieutenant- Governor ; and if there should be no Lieutenant-Governor, on the Judicial Assessor; and if there should be no Judicial Assessor, on the Senior Puisne Justice. That it has lately, however, been deemed expedient to issue a supplementary charter altering the preceding provision for the administration of the government, so far that in case of the Gover- nor’s death or absence, if there should be no Lieutenant-Governor, the government is appointed to devolve on the Colonial Secretary. Digitized by Microsoft® Powers of Governor of Colony. 80 CASES AND OPINIONS ON CONSTITUTIONAL LAW. That the Governor having reported in a despatch that, being about to absent himself, and the Colonial Secretary being actually absent, he had appointed the Senior Justice to administer the government during his absence; and to request that I would favour you with my opinion, whether the Governor’s appointment of the Senior Justice to administer the government was legally consistent with the terms of the original (as amended by the supplementary) charter, and, if not, what steps should be taken to repair the error which may have been committed ? In compliance with your request, I have taken the subject into consideration, and have the honour to report— That I am of opinion that the Governor’s appointment of the Senior Justice to administer the government was not legally con- sistent with or warranted by the terms of the original (as amended by the supplementary) charter. The error committed should be repaired either by the Governor or Colonial Secretary resuming the government, or by a Royal Warrant confirming the appoint ment of the Senior Justice pro hac vice; and, in either case, if any act of importance has been done in the meantime by the Senior Justice, it should be legalized by a Bill of Indemnity. The Right Hon. Sir E. B. Lytton, Bart., H. McC. Catrys. &e. &e. &e. NOTES TO CHAPTER III. The Governor of a colony has not a delegation of the whole royal power, as between him and a subject, which is not expressly given by his commission ; nor does any commission to Colonial Governors convey such an extensive authority. They have merely a limited authority from the Crown, and their assumption of an act of sovereign power out of the limits of the authority so given to them is purely void: Cameron. v. Kyte, 3 Knapp, P. C. 332. “Ifit be said thatthe Governor of a colony is quasi Sovereign, the answer is that he does not even represent the Sovereign generally, having only the functions delegated to him by the terms of his commission, and being only the officer to execute the specific powers with which that commission clothes him :” per cur. Hill v. Bigge, 3 Moore, P.C.476. The civil superintendent of a colony who was an officer in a regiment, and who was appointed military commandant there, was held to continue in command of the troops, not- withstanding that his own regiment was disbanded, and he was put on Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 81 half-pay: Bradley v. Arthur, 4 B. & C. 292. There Bayley, J., said: “The Crown exercises its judgment, and the persons who from time to time shall have the command in particular places, and the person under the Crown entrusted with the care of a whole district, must from time to time say who shall be the person exercising the military command within particular parts of that district ;” and per Holroyd, J.: ‘By looking into the Articles of War, particularly sections 18 & 22, it appears to be taken for granted that it is within the prerogative of the Crown, that not only the Crown itself, but also, under certain circum~- stances, a Governor, may grant commissions and make appointments.” The question of whether the Governor of a colony has, by virtue of his authority as representing the Crown, power to make grants of waste lands, was raised, but not decided, in The Queen v. Clarke, 7 Moore, P. C. 77: see Robertson v. Dumaresq, 2 Moore, P. C. (N.S.) 66. Tt was held in The Queen v. Hughes, L. R. 1 P. C. 81, that leases granted by the Governor of South Australia under powers conferred upon him by a Colonial Act, and sealed with the public seal of the province, but not enrolled or recorded in any court, are not in them- selves records, and cannot be annulled or quashed by a writ of scire facias, The case of The Queen v. Clarke, 7 Moore, P, C. 77, was there commented upon, and shown to be no authority for a contrary doctrine. The proper mode of proceeding in sucha case is by writ of intrusion, which lies in every case in which a trespass is committed on the lands of the Crown, or a person enters on the same without title ; or by infor- mation in Chancery, which may be used to speak the right of the Crown to property, as in The Attorney General v. Chambers, 4 D. M. & G. 206. In a recent case, where the question was whether the Governor of a colony, who was absent at the time of the seizure of some slaves, or the acting Governor, was entitled to the bounties payable under statute 5 Geo. 4, c. 118, 11 Geo. 4, & 1 Wm. 4, c. 55, Dr. Lushington held the Governor was entitled: Re Sierra Leone, Br. & Lush, Adm. 148. By several statutes it is provided that the word “Governor” in the particular statute shall mean the officer for the time being administer- ing the government of any colony: eg. see 12 & 13 Vict. c. 96, 8. 5. Under the statute 22 Geo. 3, c. 75, s. 2, the Governor and Council of a colony have the power to remove a judge from his office for mis- behaviour: Willis v. Gipps, 5 Moore, P. C. 379 ; Montagu v. Lieutenant- Governor of Van Diemen’s Land, 6 Moore, P. C. 489. In Ex parte Robertson, in re The Governor-General of New South Wales, 11 Moore, P.C. 288, where the appellant, a commissioner of Crown lands “in the colony of New South Wales created under a Colonial Act, and holding the office during the pleasure of the Governor,” had been dismissed by the Governor, the Court held that it was nota matter of great importance whether the office might be said to be held by patent or not. They said: ‘Their Lordships are all of opinion that the practice of this Court is not to enter into the consideration of such a dismissal unless by the express command of Her Majesty. They do G Digitized by Microsoft® Effect of demise of the Crown on Governor’s commission, 82 CASES AND OPINIONS ON CONSTITUTIONAL LAW. not enter into the consideration of such acts as are done by the Go- vernor and Council of a colony in the exercise of the power and autho- rity committed to them, whereby they dismiss persons from holding situations in that colony, they holding them not by any patent right, but simply and only during the pleasure of the Governor himself. Therefore, upon that ground we are of opinion that the original petition cauot be sustained.” Lord Stowell held that the notification of a blockade by a naval commander on a foreign station, although done without authority from the Government at home, was legal: In re Rolla, 6 Rob. Adm., 364. But with respect to his dictum in that case that a naval commander on a distant station may be reasonably supposed to carry with him such a portion of the sovereign authority delegated to him as may be neces- sary for the exigencies of the service, the Judicial Committee, in Cameron v. Kyte, ubi sup., observed that it was clear that he was speaking of such an authority being from the very nature of the case necessarily incident to the functions of a commander carrying on war ina distant part of the globe; “‘but no such necessity exists in the case of a Governor of a colony for the exercise of powers of sovereignty out of the ordinary and usual course :” see Northcote v. Douglas, 10 Moore, P.C. 37. In Bryan v. Arthur, 11 Ad. & Ell, 108, it was held that under statute 3 Geo. 4, c. 83, s. 9, the Governor of New South Wales and Van Diemen’s Land had power to revoke assignments of convicts without any remission of their sentences. In 1842 an Order in Council was made for a commission under the Great Seal, empowering the Governor of New South Wales to exercise the royal prerogative of pardon, in the case of criminals convicted of treason and murder in that colony: MS. Council Register, 1842, p. 386. Hallam says (Const. Hist. iii. 262, 38rd edit.) that we owe the pro- vision which makes the commissions of the judges run quamdiu se bene gesserint, instead of durante bene placito, to the Act of Settlement, “ not, as ignorance and adulation have perpetually asserted, to his late Majesty George III.” But this is a mistake. The statute which first altered the form of the commissions was 12 & 13 Will. 3, c. 2,8. 3; but as it was decided at the accession of Anne that the patents of the judges terminated by the demise of the Crown, this was remedied by the Act of Settlement (6 Anne, c. 7, s. 8), which enacts that all officers, including the judges, shall act upon their former patents. for the space of six months after any demise of the Crown, unless sooner removed by the next succession. And by statute 1 Geo. 3, c. 23, the commissions of the judges are tu remain in full force during their good behaviour, notwithstanding the demise of the Crown, without any limitation of time. It was this Act which gave rise to the mistake which Hallam ascribes to ‘‘ignorance and adulation:” see Devine v. Holloway, 14 Moore, P. C. 290. Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 8&3 A power of attorney is revoked by the death of the person who granted it, and a contract afterwards made under the authority given by it, though without notice of the death, is void: Watson v. King, 4 Camp. 272; and see the note to Smart v. Sanders, 5 C0. B. 917. And so, although the act was appointed to be done after the death of the principal, “A letter of attorney to deliver livery of seisin after the decease of the feoffer is void :” Co. Litt. 52 b. In the note there it is said, ‘‘ by devise or by special custom authority may be created execu- tory after the party’s death.” By the civil law a sale by an agent after the death of the principal, but before notice, binds the property: Dig. lib. 17, tit. 1, 1. 26. In general, a ministerial officer can appoint a deputy unless the office Appointment is to be exercised by the ministerial officer in person. But where the deputy. office partakes of a judicial and ministerial character, although a deputy may be made for the performance of ministerial acts, one cannot be made for the performance of a judicial act. A sheriff, therefore, cannot make a deputy to hold an inquisition under a writ of in- quiry, although he may appoint a deputy to serve a writ: Com. Dig., Officer, D. In Lane v. Cotton, 1 Salk. 18, Holt, C.J., said: “ What is done by the deputy is done by the principal, and it is the act of the principal, who may displace him at pleasure, even though he were constituted for life, vide Hob. 13, 1 Mod. 85; and the act of the deputy may forfeit the office of the principal: 39 Hen. 6, c. 34.”—See Campbell v. Hevlitt, 16 Q. B. 258. It was said by Lord Abinger, C.B., in Jewison v. Dyson, 9 M. & W. 585, that many officers may be called judicial to a certain extent who are not judicial within the general meaning of the law, which says that the Crown cannot delegate to another its right to appoint judicial officers. That rule is confined to judicial officers who determine causes inter partes. In that case the question was, whether the Crown, in right of the Duchy of Lancaster, had the exclusive. right, under a charter of Edward IIL. of appointing a coroner within the province of Pontefract. The Crown may, by charter in express words, grant to a commonalty or corporation the power to make another commonalty or corporation: Bro. Abr. Prerog. 53; and see The Queen v. Dulwich Col- lege, 21 L. J. (N.S.) (Q.B.) 36, where, per Lord Campbell, C.J., “The Crown could not delegate the appointment of magistrates.” A deputy cannot make a deputy, on the principle that delegatus non potest delegare : Com. Dig., Viscount B. 7 Vin. Abr. 556. The statute 22 Geo. 3, c. 75, enacts that no office to be exercised in any colony shall be granted by patent for any longer term than while the grantee shall discharge the duty thereof in person and behave well therein. This statute was passed to put an end to the practice of exer- cising offices in the colonies by deputy while the holders were resident in this country: see Montagu v. Lieutenant-Governor of Van Diemen’s Digitized by Microsoft® a 2 Civil liability of Governor. 84. CASES AND OPINIONS ON CONSTITUTIONAL LAW. Land, 6 Moore, P. C. 489. Where the Judge of a Vice-Admiralty Court (at Sierra Leone), who was also Chief Justice, with the concurrence of the Governor, appointed a Deputy Judge of the court, and left for Eng- land, and the Deputy Judge died soon afterwards, and then the acting Chief Justice, with the concurrence of the Governor, appointed another Deputy Judge of the Vice-Admiralty Court, it was contended that such deputy was illegally appointed, and had no jurisdiction ; but the Judi- cial Committee said that they had no doubt whatever that he was duly appointed, and had full jurisdiction: Rolet v. The Queen, L. R. 1 P.C. 198; see 26 Vict. c. 24, 8. 4. With respect to the civil liability of the Governor of a colony to an action brought against him in this country for a wrong committed by him while holding the office of Governor, the leading cases are— Mostyn v. Fabrigas, Cowp. 161; Campbell v. Hall, Cowp. 204; and see also Wail v. Macnamara, 1 T. R. 5386; Wilkins v. Despard, 5 T. R. 112; Wytham v. Dutton, 3 Mod. 160; Way v. Yally, 6 Mod. 195; Rafael v. Verelst, 2 W. Bl. 982, 1055; Glynn v. Houston, 2 M. & G. 337; Basham v. Lumley, 3 0. & P. 489; Phillips v. Eyre, L. R. 4 Q. B. 225, which clearly establish the principle that a Governor is liable to an action in this country for a wrong done by him during his government. In Lord Bellamont’s Case, 2 Salk. 625, the Attorney General moved for a trial at bar in an action against the Governor of New York for matter done by him as governor, and it was granted “because the King de- fended it.” In Phillips v. Eyre, ubi sup., it was decided that a Colonial Act of In- demnity, by which the right of action in respect of an act otherwise lawfully done by the Governor of the colony, is taken away before an action has been brought in this country, is a good defence to such action (1). In Dutton v. Howell, Show. Parl. Ca. 24, it was held that the Governor of a colony could not be sued in this country for im- prisoning a person guilty of official delinquency under his government; but this proceeded on the ground that the Governor and his Council had acted judicially: see Hill v. Bigge, 3 Moore, P. C. 482; and as to the non-liability of a judicial officer, Kemp v. Neville, 10 C. B. (N.S.) 523. The Governor of a colony may be sued in an action of debt in one of the Courts of the colony, but it seems that he would not be liable while resident in his government to be taken in execution upon judgment recovered: Hill v. Bigge, ubi sup., 465. In that case the Court com- mented upon the dictum of Lord Mansfield, in Fabrigas v. Mostyn, that ‘the Governor is in the nature of a viceroy, and that, therefore, locally during his government no civil or criminal action will lie against (1) Two of the earliest instances of Acts of Indemnity in this country are the statutes passed 7 Edw. 2: (1) Ne quis occasionetur pro reditu Petri de Gaveston; (2) Ne quis occasionetur pro captione et morte Petri de Gaveston. But these are said to have been repealed within a year after they were passed. By statute 15 Edw. 2, an indemnity was granted to all persons for felonies and transgressions done in the case of the two Le Despencers; but this indemnity was afterwards revoked. Digitized by Microsoft® ae ee Bie ea. |= POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 85 him”(1); and pointed out the difference between the liability to be sued and the liability to process in execution; and also upon the case of Tandy v. Earl of Westmoreland, 27 State Tr. 1264. The same dis- tinction between liability to action and liability to process of execu- tion was thought to apply to the case of ambassadors in Taylor v. Best, 14 C. B. 487; but the contrary was decided in The Magdaléna Steam Navigation Company v. Marten, 28 L. J. (Q.B.) 310. As to the extent of protection from civil liability accorded to public officers on grounds of policy, see Lane v. Cotton, 1 Salk. 17; Whitfield v. Lord Despencer, Cowp. 754; Cunningham v. Collier, 4 Doug. 233 ; Le Caua v. Eden, 2 Doug. 594; Allen v. Waldegrave, 2 J. B. Moore, 621; Mac- beath v. Haldemand, 1 T. R. 172; Unwin v. Wolseley, 1 T. BR. 674; Myrtle v. Beaver, 1 East, 185; Rice v. Chute, 1 East, 579; Nicholson v. Mounsey, 15 East, 384; Oliver v. Bentinck, 3 Taunt. 456; Gidley v. Lord. Palmerston, 3 Brod. & B. 275 ; Hodgkinson v. Fernie, 26 L. J.(C.P.) 217; Buron v. Denman, 2 Ex. R. 167; Broughton v. Jackson, 21 L. J. (Q.B.) 265 ; Auty v. Hutchinson, 6 C. B. 266; Tobin v. The Queen, 33 L. J. (C.P.) 199 ; Priddy v. Rose, 8 Mer. 102; Dickson v. Viscount Combermere, 3 Fost. & Fin. 585; Lhe Athol, 1 W. Rob. Adm. 374. Ina case where several actions for false imprisonment were brought . by sailors belonging to a merchant vessel which had been captured by a privateer with a letter of marque, but liberated by the Court of Admiralty, against the captain of the privateer, Lord Mansfield said: “This is a new attempt which, if it succeeded, would destroy the British navy. If an action at law should lie by the owners, and every man on board a ship taken as prize, against the captain and every man on board his ship, the sea would be safe for the trade of our enemies, however great our naval superiority :”. Lindo v. Rodney, 2 Doug. 613. Where some slaves escaped from a territory where slavery was lawful, and got on board a British ship of war in the high seas, it was held that the owner could not maintain an action against the commander of the ship for harbouring the slaves after notice: Forbes v. Cochrane, 2 B. & C. 448. There Bayley, J., said that if it could be made out that the defendants acted mald fide, they would be liable to an action, but in order to support an action against a person who fills a public office like that which the defendants filled, it is essential to shew mala fides, And, per Holroyd, J.: “I have given my opinion upon this question supposing that there would be a right of action against these defen- dants, if a wrong had been actually done by them; but I am by no means clear that even under such circumstances any action would have been maintainable against them by reason of their particular situation as officers acting in discharge of a public duty, in a place flagrante bello.” Although not liable to actions of contract at the suit of individuals for (1) This is in accordance with the Roman law: “In jus vocari non oportet neque consulem, neque prefectum, neque pretorem, neque proconsulem, neque ceeteros magistratus qui imperium habent, et qui coercere aliquem possunt, et jubere in car- cerem duci,”—Dig. ii. tit. 4, § 2. Digitized by Microsoft® 86 CASES AND OPINIONS ON CONSTITUTIONAL LAW. goods supplied for the public service, public officers may be compelled by mandamus to perform their duty in paying over monies in their hands: RB. v. Lords Commissioners of the Treasury, 4 Ad. & Ell. 286. (In the Banker’s Case, 14 State Tr. 1, temp. Wm. IIL., the proceeding was by petition to the Court of Exchequer: see 12 & 13- Wm. 3, c. 12, s. 5.) The Queen v. The Lords of the Treasury, 16 Q. B. 357; Ee parte Sir Charles Napier, 21 L. J. (Q.B.) 332. Privileged As to how far orders given by the Governor of a colony, or by a eee public officer to a subordinate, are privileged communications, see q Anderson v. Hamilton, 2 Brod. & Bing. 156 (note); Cooke v. Maxwell, 2 Stark. 183; Wyatt v. Gore, Holt, 299; Lee v. Birrell, 3 Camp. 337; Horne v. Bentinck, 2 Brod. & Bing. 130; Fairman v. Ives, 5 B. & Al. 642; Blagg v. Sturt,.10 Q. B. 899, s.¢. in Error, 906. See also the Trial of the Seven Bishops, 12 State Tr. 349, where the Clerk of the Privy Council gave evidence as to what passed in the council chamber. And as to the rule of public policy in Government prosecutions which protects a witness from answering questions to discover the informer, see Attorney General v. Briant, 15 M. & W. 169; Rea v. Hardy, 24 State Tr. 753, 808, 816; Rex v. Watson, 32 State Tr. 102. Act of State. A Governor is not liable to a suit for an act done by him in his political capacity as an act of State: Tandy v. Earl of Westmoreland, 27 State Tr. 1264; Nabob of Carnatic v. East India Company, 1 Ves. Sr. 371; 2 Ves. Sen. 56; Elphinstone v. Bedreechund, 1 Knapp, 316; Buronv. Denman, 2 Ex. R. 167; Secretary of State in Council v. Kammachee Boye Sahaba, 13 Moore, P.C. 22; Wadeer (ex-Rajah of Coorg) v. East India Company, 29 Beav. 300. Criminal With respect to the criminal liability of a Governor, it is enacted by lability of statute 11 & 12 Wm. 3, c. 12, intituled “An Act to punish Governors Moremaet, of Plantations in this Kingdom for crimes by them committed in the Plantations,” that such offences shall be tried in the Court of Queen’s Bench in England, or before such Commissioners, and “in such county of this realm, as shall be assigned by Her Majesty’s commission. And by statute 42 Geo. 3, c. 85, any person employed in the service of the Crown in any civil or military station, office, or capacity within Great Britain, who shall commit any crime, misdemeanor, or offence in the execution, or under colour, or in the exercise of his office, may be pro- secuted in the Court of Queen’s Bench. It has been held that these statutes do not extend to felonies: Rex v. Shawe, 5 M. & 8. 403. Ex- Governor Wall was tried in 1802 for a murder committed by him by inflicting excessive corporal punishment in the island of Goree in 1782, he being at that time Governor of the island, and he was con- victed and hanged (1): 28 State Tr. 51. (1) Lord Campbell says, in his “Lives of the Chief Justices,” iii. 149: “Then a very young man, just entered at Lincoln’s Inn, I was present at the trial, and carried away by the prevalent vengeful enthusiasm, I thought that all was right ; but after the lapse of half a century, having dispassionately examined the whole proceeding, I came to a very different conclusion.” Digitized by Microsoft® POWERS, DUTIES, AND LIABILITIES OF GOVERNORS. 87 In 1804, General Picton was tried for a misdemeanor in causing torture to be inflicted upon a mulatto woman in the island of Trinidad, of which he had been Governor. Lord Ellenborough left to the jury the question whether the punishment of torture was allowed by the law of Trinidad at the time of the cession of the island by Spain to England. They found that there was no such law existing at the time of the cession, and a verdict of guilty was recorded. Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 437 under the statute or at common law, some probable ground for granting it must be disclosed by affidavit; and if it appears that when the prisoner is brought up he must, on his own showing, necessarily be remanded, the writ ought not to be granted. We consider it unnecessary to discuss the question whether the Habeas Corpus Act, 31 Car. 2, was introduced into Canada by 14Geo. 3. The writ of habeas corpus ad subjiciendum was unques- tionably introduced into Canada as part of the criminal law of England; but there is great difficulty in saying that the specific regulations respecting that writ, and for bringing to trial persons charged with offences introduced into England by 31 Car. 2, were applicable to Canada before the provincial ordinance of 1784. Assuming, however, that 31 Car. 2 was introduced into Canada by the authority of an Act of the Parliament of the United King- dom, we are of opinion that it was suspended by the ordinance of the 8th of November, made under the imperial statute of 1 Vict. c. 9. The two Judges have picked out and relied upon a particular expression to be found in this statute, instead of looking to the general frame and scope of the statute, and the other enactments which it contains, wholly at variance with the construction they put upon the particular expression. The proviso respecting Acts of the Parliament of Great Britain is evidently to be confined to Acts of the same nature as those ex- pressly mentioned, and cannot be supposed intended to prevent the Special Council from passing any ordinance at all to vary the criminal law of Canada from what was the criminal law of England in the 14th year of King George III. If the extended sense were given to the proviso, the Special Council would be wholly inade- quate for the purposes for which it is declared to have been -ereated, and several of the most important enactments in 1 Vict. c. 9 would be entirely nugatory. We think the two Judges would have been right in deciding that the return to the habeas corpus by the gaoler was insufticient, if the writ had properly issued; but their judgment upon the in- validity of the ordinance of the 8th of November is contrary to law. As to the habeas corpus directed to Colonel Bowles, if the pro- ceedings upon it are disconnected from the proceedings upon the Digitized by Microsoft® 438 CASES AND OPINIONS ON CONSTITUTIONAL LAW. habeas corpus directed to the gaoler, they appear to us to be regular. Affidavits were laid before M. Bedard, showing an unlaw- ful detention of Teed, without disclosing that he had been com- mitted on suspicion of treason, or showing anything to bring his case within the ordinance of the 9th of November. Supposing the writ to have lawfully issued to Colonel Bowles, he was in contempt for disobeying it, and subject to an attachment. Considering, however, that there was upon the files of the Court an affidavit clearly showing that Teed had been committed on suspicion of high treason, that this affidavit had previously been brought to the notice of M. Bedard as well as of M. Panet, and that both Judges knew that Teed had been transferred to the custody of Colonel Bowles upon the original charge aguinst him, we are bound to say that, in our opinion, the habeas corpus to Colonel Bowles ought not to have issued, and that the subsequent proceedings against him were unjustifiable. _ The Lord Glenelg, J. CAMPBELL. &e. &e. &e. R. M. Rourz. NOTES TO CHAPTER XVI. It has been often said that Jenkes’s Case, in 1676, 6 State Tr. 1189 —where so many difficulties were thrown in the way of his obtaining a writ of habeas corpus that he lay for several weeks in prison—was the cause of the passing of the statute 31 Car. 2, c. 2, known as the Habeas Corpus Act. But Hallam has satisfactorily shown that this is a mistake: Const. Hist. of England, iii. 15 (3rd edit.). The arbi- trary proceedings of Lord Clarendon, in causing persons “to be imprisoned against law in remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law,” to quote the fourth article of his impeachment, really gave rise to it. So much importance was attached to the writ at common law long before the statute of Charles IJ, that we read of a Bishop of Durham who, in the 31st year of the reign of Elizabeth (1588), was fined £4000 for returning that he was a Count Palatine and therefore not bound to answer the writ: Bac. Abr. Hab. Corp. 6; and see R. v. Pell, 3 Keb. 279. Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 439 The old common-law remedy, where a person was improperly restrained of his liberty under no legal process, was the writ de homine replegiando, which did not issue of course, but was applied for by petition to the Great Seal, and upon affidavit disclosing the foundation on which it was prayed: Wilmot’s Opinions and Judg- ments, p. 92. And when the writ was granted, an action was brought to determine the right of detention. Thus the defendant might plead that the plaintiff was his villein, and the plaintiff had to find sureties to deliver his body to the defendant in case the jury found the fact against him. The writ issued to the sheriff, commanding him to replevy the plaintiff, and the question between him and the person who had restrained his liberty was tried in the same way as in the case of a distress of chattels: Fitzherb. Nat. Brev. Writ de Hom. Repleg. It has been said that it does not appear when the writ of habeas corpus, which seems to have been adopted from the writ de homine replegiando, was first applied to relieve against private restraints: Ib¢d. Chief Justice Wilmot declared the writ of habeas corpus to be “a remedial mandatory writ, by which the King’s Supreme Court of Justice and the Judges of that Court, at the instance of a subject agerieved, commands the production of that subject, and inquires after the cause of his imprisonment; and it is a writ of such a sovereign and transcendent authority, that no privilege or person can stand against it:” Opinions and Judgments, p. 88. For Court, however, in the passage just quoted, we may read Courts. The writ of habeas corpus may issue either at common law, or under one of the statutes applicable to it. Where it issues under the statute 81 Car. 2, ¢. 2, it is marked per statutum tricesimo primo Caroli secundi regis, as sect. 3 of that Act provides. It must, how- ever, be borne in mind that the Habeas Corpus Act, 31 Car. 2, ¢. 2, applies exclusively to cases of persons committed “for criminal or supposed criminal matters,” and not to cases of restraint of liberty otherwise than for such matters. These latter cases are specially provided for by statute 56 Geo. 3, c. 100, which, however, excepts persons imprisoned for debt or by process in any civil suit: see per De Grey, C.J., in Brass Crosby’s Case, 3 Wils. 188; 8.C. 19 State Tr. 1138. Thus, a person confined as an alleged lunatic, or under any kind of private duress, cannot be relieved under Digitized by Microsoft® 440 CASES AND OPINIONS ON CONSTITUTIONAL LAW. stat. 31 Car. 2, c. 2, but must apply for a writ of habeas corpus at common law, or under stat. 56 Geo. 3, c. 100, with respect to the operation of which it was said by Patteson, J.: “That statute ex- cludes criminal matter and process in civil suits—meaning, as I understand it, to except all cases of proceedings at law, and to include merely cases where parties are detained without any autho- rity :” Carus Wilson’s Case, 7 Q. B. 1010. In the opinion given by Chief Justice (then Mr. Justice) Wilmot, in 1758, to the questions proposed to the Judges by the House of Lords, on the second reading of a Bill “for giving a more speedy remedy to the subject upon the writ of habeas corpus,” he said: “T am of opinion that in cases not within the Act of the 31 Car. 2, writs of habeas corpus ad subjiciendum, by the law as it now stands, ought not to issue of course, but on probable cause, verified by affidavit. A writ which issues upon a probable cause verified by affidavit is as much a writ of right as a writ which issues of course. .... There is no such thing as writs of grace and favour issuing from the Judges; they are all writs of right, but they are not all writs of course. ... . Writs of habeas corpus upon imprison- ment for criminal matters were never writs of course; they always issued upon a motion grafted on a copy of the commitment; and cases may be put in which they ought not to be granted..... If malefactors under sentence of death in all the gaols of the king- dom could have these writs of course, the sentence of the law might be suspended, and perhaps totally eluded by them. The 31 Car. 2 makes no alteration in the practice of the courts in granting them. . . . And in cases out of the Act, which take in all kinds of confinement and restraint, not for criminal or supposed criminal matter, and to which this question relates, it has been the uniform uninterrupted practice, both of the Court of King’s Bench and of the Judges of that Court, that the foundation upon which the writ is prayed should be laid before the Court or Judge who awards it :” Wilmot’s Opinions and Judgments, 81-129 (1). A case is afterwards mentioned by the learned Judge, to show that the whole facts ought to be fully disclosed on the motion for the writ. A man obtained the writ, directed to his wife’s mother, to bring up his wife, upon an affidavit of detention by her; the fact (1) The Bill was rejected by the House of Lords. Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 441 being, that he had entered into articles of separation, which had determined his right to the custody of his wife. At common law the writ of habeas corpus is not grantable as of course. This was decided in Hobhouse’s Case, 3 B. & Al. 420, where Abbott, C.J., said: “It would be a very strange inconsistency in the law of England if we were bound to do an act nugatory in itself; and that would be the case if, upon a view of the copy of the warrant, a writ was of course to issue, the only effect of which would be, that upon the return to it the prisoner must be re- manded.” And he referred to the opinion delivered by Wil- mot, C.J., in 1758, in the House of Lords, where he said that writs of habeas corpus upon imprisonment for criminal matters were never writs of course; and cases might be put in which they ought not to be granted. In the same case Holroyd, J., said: “Even upon 31 Car. 2, c. 2, I should think it very questionable whether the writ was grantable of course, for that Act directs a Judge to grant in vacation upon view of the copy of the warrant.” And, per Best, J.: “The cases in which prisoners have a right to the writ are where they are detained in prison, and when they are entitled to be admitted to bail. . . . In cases which come under this statute, a single Judge may perhaps be obliged to grant the writ as of course, but in no other; and the provisions of this law do not apply to writs grantable by the Court in term time.” Thus the writ has been refused in the case of a prisoner of war: Case of the Spanish Sailors, 2 W. Bl. 1324; and even a writ of habeas corpus ad testificandum in such a case: Furby v. Newnham, 2 Doug. 419, where Lord Mansfield said that the presence of wit- nesses under like circumstances was generally obtained by an order of the Secretary of State. In that case, however, it seems that the order had been applied for without success. When Napoleon Bonaparte was on board the Bellerophon, and it was known that his destination was St. Helena, a plan was proposed for getting him on shore by the issue of a writ of habeas corpus ad testificandum, on the pretence of some action in which he would be required as a witness; but the idea was not carried into execution. The Habeas Corpus Act specially excepts from the benefit of its provisions persons committed or detained for treason or felony plainly expressed in the warrant of commitment, and persons Digitized by Microsoft® 449 CASES AND OPINIONS ON CONSTITUTIONAL LAW. convict or in execution by legal process. The Court of Exchequer refused to grant the writ for the purpose of charging in execution a person under military arrest. They said: “We have only civil jurisdiction, and have no authority to change the custody in such a case as this:” Jones v. Danvers, 5 M. & W. 234. But the writ was granted in the case of a military officer who was tried and con- victed of manslaughter by a general court-martial in the Hast Indies, and sentenced to four years’ imprisonment; but who was afterwards removed and sent in military custody to England, to undergo the remainder of his sentence: Re Allen, 30 L. J. (M. C.) 38. A writ of habeas corpus is not grantable in general where the party is in execution on a criminal charge after judgment on an indictment according to the course of the common law: per cur. The Queen v. Lees, 27 L. J. (Q.B.) 407. In the reign of Charles II. the Court of King’s Bench refused to bail a man committed on a charge of murder in Portugal: Rex v. Hutchinson, 3 Keb. 785. Also where a man was charged with a felony in Ireland contrary to the Irish statute: Rew v. Kindersley, 2 Stra. 848; see Case of Canadian Prisoners, 5 M. & W. 32; Leonard Watson’s Case, 9 Ad. & Ell. 731; Ha parte Newton, 24 L. J. (C. P.) 148; The Queen v. Lees, 27 L. J. (Q. B.) 403, where the Court refused to grant the writ in the case of a prisoner con- victed of a crime in St. Helena, and in execution of a sentence passed for that offence. The prisoner was in St. Helena when the writ was applied for. Where several persons were detained without any warrant on board a ship of war, having been captured in a smuggling vessel on suspicion of murder, the Court refused to dis- charge them or inquire into the facts of the case, but ordered them to be committed to the custody of the marshal, in order that they might be taken before a magistrate to be examined and further dealt with according to law: Ea parte Kraus, 1B. & C. 258. The Court refused the writ to bring up a wife, it appearing that she was living apart from her husband by her own free will, and was under no restraint whatever: Ex parte Sandilands, 21 L. J. (Q. B.) 342. The Courts of Exchequer and Common Pleas both refused to grant the writ in the case of a person who had been committed by a Court of Assize for a contempt in refusing to answer a ques- tion put to him as a witness during a trial: Ew parte Fernandez, Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 443 30 L.J.(C. P.) 321. For instances where the writ has been granted, and the prisoner discharged in the case of extradition treaties, see Re Fernan, 33 L. J. (M. C.) 200; Re Windsor, 34 L. J. (M. C.) 163. In Eu parte Wideman, 14 L. T. (N. 8S.) 719, the writ was refused. When the return is substantially bad the Court will discharge the prisoner, and will not allow him to be arrested on another charge before due effect has been given to their judgment by his being allowed to leave the Court: In the Matter of Douglas, 3 Q. B. 825. Where a prisoner had been committed for high treason under a warrant of the Secretary of State, and being brought up into the Court of King’s Bench was charged with an indictment and re- committed by rule of Court, he afterwards applied for a writ of habeas corpus, and: two out of the three Judges who were present decided that he was not entitled to it, as the Habeas Corpus Act speaks only of commitment by warrant, the prisoner was committed by rule of Court: Rea v. Leonard, 1 Stra. 142. But Parker, C.J., was of a different opinion. The Court refused also the writ where a person had been arrested in England for treason committed in Scotland, on the ground that the prayer for the writ “is only tobe tried, and we cannot try a treason committed in Scotland :” Res v. Mackintosh, 2 Stra. 308. ? In Carus Wilson’s Case, 7 Q. B. 984, a writ of habeas corpus was issued by a Baron of the Court of Exchequer in vacation under the seal of and returnable in the Court of Queen’s Bench, and directed to the keeper of a gaol in Jersey, to bring up the body of the prisoner. An application was made to the Court of Queen’s Bench to quash the writ, and it was contended that a Baron of the Exchequer had no such power as had been exercised; but the Court of Queen’s Bench held that he had, and reliance was placed upon the statute 1 & 2 Vict. c. 45, s. 1, which provides that every Judge of the three superior Common Law Courts shall have juris- diction relating to any suit or proceeding in any of those Courts, or relating to the granting writs of certiorari or habeas corpus, “in like manner as if the Judge transacting such business had been a Judge of the Court to which the jurisdiction of law belongs.” The Court said that the learned Baron (Rolfe) “had a discretion as to the Court where the writ would be made returnable, and might Digitized by Microsoft® How writ obtained, 444 CASES AND OPINIONS ON CONSTITUTIONAL LAW. lawfully on these affidavits send the matter before the Queen’s Bench.” It seems to have been once doubted whether the Court of Common Pleas could issue the writ at common law, owing to certain dicta that that Court could only grant it if the person were privileged there, or in order to charge him with an action. But it has been decided that it has co-ordinate jurisdiction in this matter with the other Courts: Wood's Case, 2 W. Black. 745; and see Bushell’s Case, Vaugh. 154. Whatever doubts may formerly have been entertained as to the power of a Judge of one of the three Courts of Common Law to issue the writ in vacation, returnable before himself at chambers, ‘in the case of a prisoner committed in execution for a criminal offence, and therefore not within the statute 56 Geo. 3, c. 100, it is now settled that he has the power: Leonard Watson’s Case, 9 Ad. & Ell. 731; and see Bac. Abr. Habeas Corpus, B. 1. That the Court of Chancery has the power in vacation as well as in term had been previously decided by Lord Eldon in Crowley’s Case, 2 Swanst. 1. Another question is, ought the rule for issuing the writ to be a rule nisi, or absolute in the first instance? In Carus Walson’s Case, 7 Q. B. 1001, the Court of Queen’s Bench said: “We do not intimate that a previous inquiry would be wrong where there is reason for supposing the prisoner to be under sentence of a court. On the contrary, we think such a course the most desirable, and may conjecture that the learned Judge would probably, on more reflection, have granted a rule nisi for that purpose.” Tn order to obtain a writ of habeas corpus an affidavit is neces- sary, and it ought to be made either by the party himself who claims the writ, or by some other person, so as to satisfy the Court that the prisoner is so coerced as to be unable to make it: Canadian Prisoners’ Case, 5 M. & W.32. In the case of the Hottentot Venus, 13 East, 195, the affidavits were made by the secretary and mem- bers of a society called “The African Institution ;” and although it does not so appear in the report, it was said by the Court of Ex- chequer in the Canadian Prisoners’ Case, that a reason was there assigned for not producing an affidavit from the party herself. The Court ordered that she should be examined by the coroner and Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 445 attorney of the Court, who reported that she was a free agent, and the rule nisi was discharged. See In re Thompson, 30 L. J. (M.C.) 19; Cobbett v. Hudson, 15 Q. B. 988. An important question arises, whether, on a return to the writ, The return“ affidavits are admissible to controvert the statements either in the ’° ¥"* return or the order of commitment, and show that they are not true ? A distinction must be here taken between cases under statute 31 Car. 2, c. 2, or at common law previous to statute 56 Geo. 3, c. 100, and cases to which the last-mentioned statute applies. The rule previous to that statute is thus laid down by Hawkins (Pleas of Crown, bk. ii. c. 15, s. 78): “It seems to be agreed that no one can in any case controvert the truth of the return to a habeas corpus, or plead or suggest any matter repugnant to it. Yet it hath been holden that a man may confess and avoid such a return by admit- ting the truth of the matters contained in it, and suggesting others not repugnant, which take off the effect of them.” Upon this point, see the cases cited in Leonard Watson's Case, 9 Q.B. 788-90. Wilmot, J., says: “In case the facts averred in the return toa writ of habeas corpus are sufficient in point of law to justify the restraint, I am of opinion that the Court or Judge before whom such writ is returnable cannot try the facts by affidavits in any proceeding grafted upon the return to such writ of habeas corpus :” Opinions and Judgments, p. 106. But it would seem that this doctrine ought now to be limited to cases of commitments for matter of a criminal nature (as in returns to writs under 31 Car. 2, c. 2), or commitments under civil process ; for by sect. 3 of statute 56 Geo. 3, ec. 100 (commonly called Onslow’s Act)—which provides for the issuing of the writs of habeas corpus in vacation time, in the case of persons confined or restrained of their liberty, “ other- wise than for some criminal or supposed criminal matter, and except persons imprisoned for debt or by process in any civil suit ” —it is enacted that the Judge before whom such writ is returnable may examine into the truth of the facts set forth in the returns by affidavit, and “do therein as to justice shall appertain ;” and by sect. 4, “the like proceeding may be had in the Court for contro- verting the truth of the return..... although such writ shall be awarded by the said Court itself, or be returnable therein.” Under the authority of this statute affidavits controveriing the Digitized by Microsoft® 446 CASES AND OPINIONS ON CONSTITUTIONAL LAW. truth of the return were admitted in the case of persons imprisoned on a charge of smuggling: Ex parte Beeching, 3 B. & C. 136. There, Abbott, C.J., said : “ The habeas corpus in this case was a writ issuing by virtue of the common law; and I think that under such circumstances the 56 Geo. 3, c. 100, s. 4, gives to the prisoners the right to controvert the truth of the return.” But more re- cently, when a defendant had been committed to prison by order of the Master of the Rolls, for not putting in an answer to a bill in Chancery, the Court of Queen’s Bench refused to allow affidavits to be used, on a return to a writ of habeas corpus, to show that the statements contained in the order were not true: In the Matter of Clarke, 2 Q. B. 619. Patteson, J., there said: ‘There is no case in which a party has been allowed in this way directly to contra- dict facts set forth in an order; all that the Courts have per- mitted has been to allege a collateral extrinsic fact, confessing and avoiding, as it were, the disputed order.” Here the distinction does not appear to be adverted to, between a commitment for a criminal matter to which statute 56 Geo. 3, c. 100, does not apply, and such a commitment as was then before the Court; unless, indeed, it could be deemed an imprisonment “ by process in a civil suit,” and so taken out of the operation of that Act. An additional reason was, however, given by Lord Denman, C.J., for rejecting the affidavits, which puts the matter on a different and more tenable ground. He said: “The adjudication of any competent authority deciding on facts which are necessary to give it jurisdiction is sufficient. It would be different if the affidavits tended to show that the magistrate’s order was obtained by fraud, or that he was not really enercising the functions which he professed to exercise.” And per Wightman, J.: “No case is cited in which parties have been allowed to controvert a fact directly decided by a Court of competent jurisdiction.” Where a prisoner is in custody under the sentence of a Court of competent jurisdiction, no inquiry will be made by the Court on the return to a writ of habeas corpus as to the validity of the sen- tence and lawfulness of the custody. As was said by Lord Denman, C.J. : “When it appears that the party has been before a Court of competent jurisdiction, which Court has committed him for a con- tempt, or any other cause, I think it is no longer open to this Court Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 447 to enter at all into the subject-matter...... The security which the public has against the impunity of offenders is, that the Court which tries must be considered competent to convict :” Carus Wil- son’s Case, 7 Q. B. 1008. See also In the Matter of Clarke, ubi sup.; BR. v. Suddis, 1 Hast, 306 (sentence of a court-martial) ; Brass Crosby's Case, 3 Wils. 199 (commitment by the House of Commons) ; R. v. Flower, 8 T. R. 325 (commitment by the House of Lords). This, however, must not be taken to mean, that where it appears on the face of the return that the commitment was wrong, the Court will not discharge the prisoner. In Bushell’s Case, Vaugh. 135, the return was that the prisoner was a juryman who had been fined and imprisoned by the Court of Session at the Old Bailey (a Court of oyer and terminer), for giving a verdict contrary to evidence ; and he was discharged on the ground that the sentence was illegal. And in the case of Burdett v. Abbot, 14 East, 150, Lord Ellenborough, C.J., said: “If a commitment appeared to be for a contempt of the House of Commons generally, I would neither in the case of that Court, or of any other of the superior Courts, inquire further: but if it did not profess to com- mit for a contempt, but for some matter appearing upon the return, which could by no reasonable intendment be considered as a con- tempt of the Court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law or national (gu. natural?) justice; I say that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to occur) we must look at it and act upon it as parties may require from what- ever Court it may profess to have proceeded.” What then, it may be asked, is the safeguard of the subject ? For the committing Court may suppress in its warrant the particu- lars of the cause of commitment, and then the Court which issues the writ of habeas corpus cannot inquire into it, or discharge the prisoner. The only answer seems to be that conveyed in the judg- ment of Lord Denman, C.J., in the case of The Sheriff of Middlesex, 11 Ad. & Ell. 292, which had reference to a commitment by order of the House of Commons, but is in principle applicable to all com- mitments : “ Indeed (as the Courts have said in some of the cases), it would be unseemly to suspect that a body, acting under such Digitized by Microsoft® 448 CASES AND OPINIONS ON CONSTITUTIONAL LAW. sanctions as a House of Parliament, would, in making its warrant, suppress facts which, if discussed, might entitle the person com- mitted to his liberty.” The truth is, that in many cases much must necessarily be left to the discretion and good sense of tribunals acting under the authority of the law, and responsible to public opinion. As was observed by De Grey, C.J., in Brass Crosby's Case (3 Wilson, 202; 8. C. 19 State Tr. 1150-51) : ‘ It is better to leave some Courts to the obligation of their oaths. In the case of a commitment by this Court (Common Pleas), or the King’s Bench, there is no appeal. Suppose the Court of King’s Bench sets an excessive fine upon a man for a misdemeanor, there is no remedy, no appeal to any other Court. We must depend upon the discre- tion of some Courts. ... Some persons, some Courts, must be trusted with discretionary powers.” A distinction must be taken between a commitment under a final sentence, or judgment, and a commitment for the purpose of trial. In the latter case the Court will examine on affidavits the circumstances under which a prisoner has been committed for trial, in order to see whether it is proper that he should be held to bail: see Bac. Abr. Hab. Corp. (B) 11: see In the Matter of Douglas, 3 Q. B. 825. In a false return, it is said there is no remedy against the officer, but an action on the case at the suit of the party grieved, and an information or indictment: Bac. Abr. Hab. Corp. (B) 8. A writ of attachment will, however, issue against him as for a contempt: Leonard Watson's Case, 9 Ad. & Ell. 797. The return to the writ ought to set out the warrant of com- mitment. In Bushell’s Case (Vaugh. 137), Vaughan, C.J., said: “The cause of the imprisonment ought, by the return, to appear as specifically and certainly to the Judges of the return as it did appear to the Court or person authorized to commit; else the re- turn is insufficient.” ‘This, however, is stated too broadly. It certainly is not necessary to specify the particulars of the offence which led to the commitment, which may be quite unknown to the person to whom the writ is directed, and whose means of informa- tion are confined to the contents of the warrant itself. See the observations of the Attorney General (Sir V. Gibbs), arguendo, in Burdett v. Abbot, 14 Kast, 91, and the doubts thrown by Lord Digitized by Microsoft® & oe ON THE WRIT OF HABEAS CORPUS. 449 Ellenborough, C.J., on the correctness of the proposition laid down by Vaughan, C.J. Thus a commitment by a competent Court for a contempt need not specify the nature of the contempt, and on a return to the writ stating contempt generally, the Court will not inquire into its nature and see whether it is sufficient to justify the imprisonment. This was solemnly decided in the important case of The Sheriff of Middlesex, 11 Ad. & Ell. 273, which was the case of a commitment by order of the House of Commons, and where all the authorities were elaborately reviewed (1). There Littledale, J., said: “If the warrant declares the grounds of adju- dication, this Court, in many cases, will examine into their validity ; but if it does not, we cannot go into such an inquiry.” And inthe previous case of Burdett v. Abbot, 14 Kast, 1, 150,—as to which Lord Denman, C.J., in the case of The Sheriff of Middlesex, ubi sup. 289, declared that there is perhaps no case in the books entitled to so great weight,—Lord Ellenborough, C.J., said: “If a commitment appeared to be for a contempt of the House of Commons gene- rally, I would neither in the case of that Court or of any other of the superior Courts inquire further.” In the case of a commitment under a writ de excommunicato capiendo, it was held that the cause of excommunication must be set forth in the writ; and the reason assigned was that by statute 5 Eliz. c. 23, the writ is made returnable in the Court of Queen’s Bench, “ which could be to no purpose if the canse were not to be set forth in the writ, and this Court judge of that cause:” R. v. Fouler, 1 Salk. 293, 350; and see R. v. Snellor, Vern. 24. The return need not be, and in practice never is, supported by affidavits: Leonard Watson’s Case, 9 Ad. & Ell. 731-794. We have seen that under a writ of habeas corpus the warrant of (1) By an order of the House of Commons, 23rd of June, 1647 (the Long Parliament), the sergeants and keepers of persons were directed to make returns to writs of habeas corpus, with the causes of detention; but the judges were ordered not to proceed to bail or discharge the prisoners without notice to the House : 5 Com. Jour. 221; see May’s Parliam. Pract. 71, n. 5 (8rd edit.). It is needless to say that, so far as it applies to the Judges, such an order would, at the present day, be entirely disregarded, and they would act in the spirit of Willes, C.J., who said, in Wynn v. Middleton, 1 Wils. 1:8: “I declare for myself that I will never be bound by any determination ot the House of Commons against bringing any action at common law for a false or a double return; and a party in- jured may proceed in Westmiuster Hall, notwithstanding any order of the House.’ Digitized by Microsoft® 24 450 CASES AND OPINIONS ON CONSTITUTIONAL LAW. commitment (or a copy of it) must be returned. But in several cases, such as commitments by Courts for contempts, and in passing sentence on persons convicted of crimes, there is no warrant, but merely the oral authority of the Court to keep the prisoner in custody. In Carus Wilson’s Case, 7 Q. B. 1011 (the case of a sentence of imprisonment for contempt, pronounced by a Court in Jersey), Patteson, J., said: “No warrant was necessary. Courts in such cases seldom act by warrant. We never do. If a party is brought up we sentence him in open Court. The same course is pursued at the assizes and at the sessions. When a man is sen- tenced to be hanged no warrant issues.” (But if sentence is not awarded in open Court, the service of a written warrant is neces- sary: see per Parke, B., in Ely v. Moule, 5 Ex. R. 925. And when a justice of the peace commits for contempt, a warrant is necessary: Mayhew v. Locke, 7 Taunt. 63.) What then in such cases is the gaoler to do when called upon to make a return to the writ? This question is answered by what was said by the Court in King v. Clerk, 1 Salk. 349: “ Where a commitment is in Court to a proper officer there present, there is no warrant of commitment, and therefore he cannot return a warrant in hee verba, but must return the truth of the whole matter under peril of an action.” A defect in form in a commitment by a Court of oyer and ter- miner will not entitle a prisoner to his discharge where there appears a good cause for his commitment: see Bethell’s Case, 1 Salk, 348, where the Court said: “ Before Bushel’s Case (6 State Tr. 999), no man was ever by habeas corpus, without writ of error, delivered from a commitment of a Court of oyer and terminer;” and see Hammond’s Case, 9 Q. B. 92. As was said by the Court of Queen’s Bench in Leonard Watson’s Case, 9 Ad. & Ell. 787 (where reliance was placed on the authorities—Barnes’s Case, 2 Ro. Rep. 157; R. v. Suddis, 1 Kast, 306 ; and see Beenan’s Case, 10 Q. B. 492): “Returns to the writ of habeas corpus do not require minute correctness if the substance of the facts is stated.” But in an earlier case, Bayley, J., said: “ In these cases the greatest certainty is requisite, for the Court must see distinctly that the party who is’ brought up is justly deprived of his liberty :” Deybel’s Case, 4 B.& Al. 246. Perhaps, however, these apparently conflicting statements may be reconciled by making a distinction between Digitized by Microsoft® ON THE WRIT OF HABEAS CORPUS. 451 commitments by regular Courts of competent jurisdiction and com- mitments under a special authority given by Act of Parliament. In the case to which the observations of Mr. Justice Bayley applied, the prisoner had been impressed as a seaman as a penalty for having been engaged in smuggling by virtue of the provisions of statute 59 Geo. 3, c. 121. An error in the return may be amended: Re Clarke, 2 Q. B. 619; Leonard Watson's Case, 9 Q. B. 731. As was pertinently observed by Lord Eldon, L.C., in 2 Russ. 584, “It would be a strong thing to say, that the merits of a committal are to be tried merely by the return to the writ, however erroneous that return may be. The return ought to show by whose order the commitment was made, and a return alleging that the prisoner is a deserter, and detained under statute 5 & 6 Vict. c. 12, ought expressly to show that he is a soldier and ought to be with his corps:” Re Douglas, 3 Q. B. 825. In Carus Wilson’s Case, 7 Q. B. 1001, the Court of Queen’s Bench said: “ We find from the Master of the Crown Office that the Court held more than once, in 26 Geo. 3, that no writ of habeas corpus should be quashed for matter that can be properly returned to it. Asa general order, that is certainly the most convenient course—most just to the party applying for the writ, and most in furtherance of the great object for which our Constitution has appointed it.” As to the right of action for refusal of copy of the commitment or warrant, see Hudson v. Ash, 1 Stra. 167. If no return is made to the writ, the Court will grant an attach- ment nisi, without a rule to return the writ: R. v. Wright, Stra. 915. It will not, however, grant an attachment to accompany the writ in the first instance: R. v. Earl Ferrers, 1 Burr. 631. The penalty of £500, imposed by stat. 31 Car. 2, c. 2, s. 10, Penalty. applies only to a refusal of the writ by a Judge in vacation time. The statute, says Hawkins, “leaves it to their discretion in all other cases to pursue its directions in the same manner as they ought to execute all other laws, without making them subject to the action of the party :” Pleas of Crown, bk. ii. The writ should be directed to the person who has the actual custody of the prisoner, and ought not to be in the disjunctive—as, Digitized by Microsoft® 2a 2 452 CASES AND OPINIONS ON CONSTITUTIONAL LAW. for instance, to “the sheriff or gaoler:’ R. v. Fowler, 1 Salk. 350. In execution in civil cases, the custody is that of the sheriff, but in criminal that of the gaoler: Ibid. aa we It is laid down that the King may send his writ of habeas corpus "ad subjiciendwm to whom he pleases, and he must have an answer of his prisoner wherever he be: Bacon Abr. Hab. Corp. (B) 6. And it runs at common law to all the dominions of the Crown: Calvin’s Case,7 Co. 20a; R.v. Cowle,2 Burr. 856 ; Bac. Abr. Hab. Corp. (B) 2; Re Anderson, 30 L.J. (Q.B.);129, where the writ was granted to bring up the body of a British subject in Canada alleged to be illegally in custody there. The Court said : “The more remark- able cases are the instances in which the writ of habeas corpus has issued into the islands of Jersey, Man, and St. Helena, all these in very modern times.” Lord Denman, O.J., in delivering the judg- ment of the Court in Carus Wilson’s Case, 7 Q. B. 998, said : “ That the writ of habeas corpus ad subjiciendum has legal force in the island of Jersey, and must be obeyed there, is now admitted on all hands. It was held that the writ lay to Calais, when that town was subject to the Crown of England—Bacon Abr. Hab. Corp. (B) 2— and to the Isle of Man: Crawford's Case, 13 Q.B. 613; Re Brown, 33 L.J. (Q.B.) 193, where it was held that the Isle of Man is not a foreign dominion of the Crown.” Now, however, by stat. 25 & 26 Vict. c. 20, no writ of habeas corpus shall issue out of England, by authority of any Judge or Court of Justice therein, into any colony or foreign dominion of the Crown, where Her Majesty has a lawfully established court or courts of justice, having authority to grant and issue the writ, and to ensure the due execution thereof throughout such colony or dominion. Frspensiin of The following are instances of suspension of the writ of habeas ; corpus by Act of Parliament: 1 Will. & M. stat. 1, cc. 7, 19; 7 & 8 Will.3, c.11; 6 Anne, ¢.15; 1 Geo. 1, ec. 8, 30; 17 Geo. 2, c.6; 19 Geo. 2, c,1; 17 Geo, 3, ec. 8, 9; 84 Geo. 3, «. 54; 35 Geo. 8, c. 1; 38 Geo. 3, c. 36; 39 Geo. 3, ¢. 44; 39 & 40 Geo. 3, c. 82; 41 Geo. 8, c. 26; 57 Geo. 8, ec. 3, 55; 11 & 12 Vict. c. 35. Digitized by Microsoft® 453 CHAPTER XVII. ON CERTAIN POINTS RELATING TO CRIMINAL LAW. (1.) Jomnr Opinion of the King’s Advocate, Sin CuRisTOPHER Rosinson, and the Attorney and Solicitor General, Str Robert GurrorD and Sir Joun Cortey, on an application by the United States Government, that certain Proceedings of Outlawry in Canada might be revoked. Doctors’ Commons, May 15, 1823. My Lorp,—We are honoured with your Lordship’s commands of the 3rd instant, transmitting a letter from Lord Francis Conyngham, inclosing the copy of a note which has been addressed to Mr. Se- cretary Canning by the American Minister in this country, request- ing that certain proceedings of outlawry which have been passed in Upper Canada, against John M‘Donnell, may be revoked; and your Lordship is pleased to request that we would take the same into consideration, and report to your Lordship our opinion, as to the steps necessary to be pursued in the event of his Majesty deem- ing it expedient to comply with the application of the American Government. In obedience to your Lordship’s commands, we have the honour to report that, in the event of his Majesty deeming it expedient to com- ply with the application of the American Government, the effect of the outlawry against John M‘Donnell, the legality of which does not appear to be questionable, may be removed, either by a nolle prosequi being entered upon the indictment, by the Attorney Gene- ral of the province, on the part of his Majesty, or by a general pardon to be granted to Mr. M‘Donnell. Curist. Ropinson. To the Earl Bathurst, R. GirForp.. &e. &e. &e. J. S. Copiey. Digitized by Microsoft® 454 CASES AND OPINIONS ON CONSTITUTIONAL LAW. (2.) Joint Oprnton of the Attorney and Solicitor General, Str Joun Cortey and Sir Cuartes WETHERELL, on a Peti- tion presented to the Governor of the Colony of the Cape of Good Hope containing libellous matter, and as to how far i was privileged (1). Serjeants’ Inn, April 28, 1825. My Lorp,—We have had the honour to receive your Lordship’s letter, dated the 13th instant, requesting our opinion upon the following questions, viz. : 1st. Whether under the statute 1 Will. & M. c. 2, or under any general principle or maxim of the law of England, it is competent to a natural-born British subject of his Majesty resident in the colony of the Cape of Good Hope, to present with impunity to the Governor of that settlement a petition for redress of grievances, containing statements which, if published to the world at large, would, according to the principles both of Dutch and English law, have been libels in the Courts of the colony ; and which, according to the principles of Dutch law, would be punishable as libels, even though communicated exclusively to the Governor ? 2nd. Whether the impunity of the petitioner in such a case de- pends upon the statements in question being relevant to the objects of his petition; or whether libellous statements, if clearly irrele- vant and unnecessary, would subject him to a criminal prosecution for libel ? 3rd. Whether any distinction is to be made between petitions presented to the Governor in his judicial character, and those ad- dressed to him as the chief executive officer of Government in the colony ? 4th. Whether his Majesty’s subjects born in Great Britain enjoy any privileges in this respect, while actually in the Cape of Good Hope, distinct from those of the Dutch inhabitants who have become his Majesty’s subjects by the cession of the colony ? In compliance with your Lordship’s request, we have taken into our consideration the statement and questions contained in your Lordship’s letter, and beg leave to report, as our opinion upon the first question, that a British subject born within the United King- dom, but resident at the Cape of Good Hope, could not so act with (1) See page 86, ante, Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 455 impunity, but would be subject to punishment according to the laws of the colony in which he was resident; and as to the second question, we think the circumstance of the libellous statements being irrelevant and unnecessary would not in England subject the party to punishment in the case of such a petition as would be deemed a privileged communication. As to the third question, it would with reference to this subject be difficult to separate the characters of Governor and Judge, and to say that any petition of this description was presented to the Governor merely in his judicial capacity. But even if such sepa- ration could be made, and it were clear that the petition was pre- sented to him solely in his judicial character, still if he had autho- rity to interfere in the matters to which the petition related, such petition would, we think, according to the law of England, be a privileged communication. As to the fourth question, we are of opinion that his Majesty’s subjects born in Great Britain do not enjoy any privileges in the above respects, while actually resident at the Cape, distinct from those of the Dutch inhabitants who have become his Majesty’s subjects by the cession of the colony. To Earl Bathurst, J.S Coprey. &e. &e. &e. Cas. WETHERELL. (3.) Jomnt Opinion of the King’s Advocate, Siz Hurpert JENNER, and the Attorney and Solicitor General, Sin CHARLES WETHERELL and Sir Nicotas TINDALL, on a trial of Pirates at Malta; on a Jury de medietate, and Right of Challenge in that case. Doctors’ Commons, April 24, 1828. Srr,—We are honoured with your commands, signified in your letter of the 8th instant, transmitting a case which has been pre- pared under your direction, respecting certain persons who have been capitally convicted of piracy before the Court for the trial of pirates at Malta; and you are pleased to request that we would, with the least possible delay, report for his Majesty’s information. our opinion upon the question proposed for our consideration at the conclusion of that case.’ In obedience to your commands, we have the honour to report Digitized by Microsoft® 456 CASES AND OPINIONS ON CONSTITUTIONAL LAW. that we think the sentence against the three convicts mentioned in the preceding statement may be legally carried into effect. For we conceive the object of the Legislature in passing the 46 Geo. 3 was to substitute a trial by the common course of the law in Eng- land where persons are charged with piracy in colonies and other places beyond sea, instead of a trial by the course of the civil law, which had been directed by the statute 11 Will. 3; and we think the Act must have a reasonable construction put upon it, and that it must intend a trial by jury, so far as the forms of that trial are practicable in the country where it takes place. Indeed, to construe the Act as requiring the trial by jury in all the exact forms for naming and summoning the jury prescribed by the law of England would be to make the statute a dead letter. It appears that the charge was first submitted to persons summoned in the nature of a grand jury, and found by them to be a true bill. The number, indeed, of such jurors is not expressly stated, but we assume that twelve of the jurymen concurred in such finding of the bill, and that such twelve constituted a majority. The trial then took place by twelve persons, half being subjects of his Ma- jesty and half being aliens, and chosen out of a number summoned to serve on the jury amply sufficient to allow of all the challenges to which the prisoners were entitled (1). We are of opinion, there- fore, that the Act has been complied with as closely as circum- stances would allow, for a mode of naming and summoning the jury more conformable to the English law is stated to be impracticable in the island. As to the objection that two of the alien jurymen were disquali- fied upon the ground of their having been attainted of treason and felony, and outlawed in consequence thereof by the law of a foreign country, we see no reason to believe that parties so cireum- stanced come within the scope of the exception in 6 Geo. 4, c. 50, s. 3, which we think must be interpreted as descriptive of persons attainted and outlawed by the English law. And, at all events, in the present case the objection came too late, for it was properly the ground of challenge only, which must be made before the jary- (1) In the Notes to Chapter IV. (p. 117, ante), I have expressed an opinion that pirates, although foreigners, are not entitled to be tried by a jury de medietate ; but I do not feel at all sure on the point. Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 457 men are sworn, and cannot be insisted upon afterwards. And here it appears by the statement that the prisoners must have been aware of the objection before the trial, inasmuch as we collect that it was taken and proved before the jury was discharged. Upon the whole, therefore, assuming the grand jury to have been con- stituted as above supposed, we think the inquiry and trial has been according to the common course of the law of England within the meaning and construction of the Act. Upon the other part of the statement in the petition, which appeals to a merciful consideration of the case, we do not of course presume to give any opinion. HERBERT JENNER. The Right Hon. Mr. Sec. Huskisson, CuAs. WETHERELL. &. &e. &e. N. C. Tinpat. In case it should upon further investigation be ascertained that the prisoners and their counsel were unacquainted with the ground of challenge at the time when such challenge ought to have been taken, we think it right to state that that circumstance will not, in strictness of law, make any difference whatever, as the challenge must be taken before the trial begins. But at the same time, as a reasonable doubt may be raised that the prisoners, from inadver- tency or ignorance, have lost an advantage, it may be matter of discretion for the Crown whether the severest measure of punish- ment should be inflicted in that case. HERBERT JENNER. Cuas. WETHERELL. April 30, 1828. N. ©. Trypat. (4.) Jornt Oprnton of the Attorney and Solicitor General Str Tuomas Denman and Str Witiiam Horns, on the Right of Slaves to claim Benefit of Clergy, and degree of certainty required in an Indictment. Lincoln’s Inn, January 24, 1832. My Lorp,—We feel ourselves bound to take the earliest oppor- tunity of answering your Lordship’s letter of the 18th instant, which submits to our consideration a case respecting the trial of certain slaves in the island of Tortola, because the doctrines on which the claim to benefit of clergy on the part of slaves in Tortola has been resisted in that island, go the whole length of depriving Digitized by Microsoft® 458 CASES AND OPINIONS ON CONSTITUTIONAL LAW. that class of all protection from the law, except where special enactments have been made in their favour. According to those doctrines, the inquiry whether a slave has been lawfully convicted before he is put to death must always be superfluous, for he is boldly declared to derive no protection from the common law, and to be out of the King’s peace. Not only the public executioner, therefore, but any private individual is at liberty to treat him in any way he may think proper, subject only to such penalties (if any) as may have been specifically provided for the fact committed, and to such’ damages as the owner may recover for the injury done to his property in the slave. These doctrines do not appear to have been universally adopted. The Commissioners for legal inquiry have in their reports dis- tinctly pronounced their opinion that slaves, as subjects of his Majesty, are entitled to the protection of the common law, and many lawyers in the colonies have plainly viewed the subject in the same light. We do not hesitate to inform your Lordship that such is also our opinion, and it follows that to deprive a slave of life without lawful authority must be murder or manslaughter, according to the circumstances of the particular case. Having cleared away this preliminary difficulty, which would have precluded all further inquiry, we beg leave to state that we have read the case attentively, and think the questions correctly propounded at its close,—whether the indictment against Sam Fahie, Andrew Fahie, Johnns Purcell, Jacob Kierney, and Mac- Daniel (otherwise called McDonald), is sufficiently precise and defi- nite to be sustained in point of law; and, secondly, whether the slaves ought to be admitted to their benefit of clergy. We entertain no doubt on the first point. The indictment is, in our opinion, completely worthless, as giving the accused no notice of the offence with which he stands charged. The first principles of law require that the charge shall be so preferred as to enable the Court to see that the facts amount to a violation of the law, and the prisoner to understand what facts he is to answer or disprove. No argument is necessary to show that this indictment is insuffi- cient, and unavailing for either purpose. If sufficient overt acts had been set forth, and the jury had found the prisoners guilty, we are inclined to think, on the very technical Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 4659 point relating to benefit of clergy, that the prisoners would not have been entitled to that privilege. But we deem this discussion unnecessary, after giving a deliberate opinion on the nature of the indictment. But, with a view to the future administration of criminal law in Tortola, and in other colonies where similar laws may have been made, we crave permission to express our serious doubts whether the law of 1783 is not in its own nature too vague, indefinite, and unintelligible to be capable of enforcement in any case: in other words, whether it is not, like some other legal instruments can- vassed in courts of justice, void for uncertainty. We also conceive that this lav may well be challenged as being contrary to natural justice. The crime to be punished is thought not even requiring to be evinced by any overt act. The only overt act mentioned (and that asa separate crime) is speaking words tending to mutiny, &c. But unless they should be wilfully spoken it is against reason to punish the utterer. Sir Edward Coke, in the eighth part of his Reports (page 118), records the opinion of the Court of King’s Bench, that “in many cases the common law will control Acts of Parliament, and some- times adjudges them to be utterly void ;” and though Blackstone (1 Com. 85) questions the right of the judicial authority to over- rule the legislative, he exemplifies the manner in which the former may easily elude the latter. For avoiding such collisions, and for establishing a criminal law which may admit of no difficulties in the execution, we respectfully suggest the propriety of a speedy change in that upon which the questionable indictment against the five slaves has been founded. To the Right Hon. Visct. Goderich, T. Denman. &e. &e. &e. Wa. Horne. (5.) Joint Opinion of the Attorney and Solicitor General, Siz WitL1am Horne and Sir Joun CampsBeEtt, on the Power of the Crown to grant a Conditional Pardon. Lincoln’s Inn, December 26, 1832. My Lorp,—We have the honour to acknowledge the receipt of your Lordship’s letter of the 28th November last, transmitting to us a copy of a despatch dated 31st May last, which your Lordship Digitized by Microsoft® 4C0 CASES AND OPINIONS ON CONSTITUTIONAL LAW. received in the month of June from the Governor of Antigua; and the copy of a despatch from yourself to the Governor, dated 19th of the same month; the copy of ‘a despatch from the Governor to your Lordship, dated 30th August, and of two enclosures contained in it—these papers comprising the answer of the law officers of the Crown of Antigua to three questions proposed by your Lord- ship for their consideration, and requesting us to report to your Lordship our opinion with reference to these questions. We beg to state to your Lordship that we entirely concur in opinion with the law officers of Antigua upon the several questions submitted to us. 1st. We think that the introduction of the slave Mary into Antigua from Saint Bartholomew, under the circumstances stated, was not a violation of the Act for the abolition of the slave trade ; as this Act could not be meant to prevent a fugitive slave, who had absconded from his master to a foreign island, from voluntarily returning or being brought back by the person who induced his clandestine departure. 2nd. The Colonial Act on which this indictment proceeded appears to us to define with sufficient clearness the offence for which the prisoner was tried. 8rd. We are of opinion that if the party, after accepting the conditional pardon, should in breach of the conditions return to the island, he might in strictness be referred back to his original sen- tence, and, his identity being proved, execution might be awarded against him. There is hardly anything to be found respecting conditional pardons in the old English law-books (1); but the authority of the Crown to grant a conditional pardon in capital cases is distinctly recognized in statute 5 Geo. 4, c. 84, s. 2; and it has been several times decided by the English Judges, that where the condition on which a pardon was granted has been broken, the offender may be referred to his original sentence. But we feel it our duty to add that this power, in our opinion, could only be properly used for compelling a performance of the condition. To the Right Hon. Visct. Goderich, W. Horne. &e. &e. &e. J. CAMPBELL. (1) The Crown may extend its mercy on what terms it pleases, and conse- quently may aunex to ils pardon any condition that it thinks fit, whether prece- Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 461 (6.) Joint Oprnton of the Attorney and Solicitor General, Sir Freperick Potnock and Str WitiiAmM Fouuert, on the commutation of Sentence of Death to Transportation, with con- sent of the Convict. Temple, August 31, 1842. Str,—We beg to acknowledge the receipt of your letter of the 10th instant, wherein you state that George Hiscock, a soldier of the 76th Regiment, having been sentenced by the civil courts in Nova Scotia to death for the crime of firing at a sergeant of that corps with intent to kill, the Lieutenant-Governor of the province, at the instance of the jury, recommended a mitigation of the sen- tence. The Lieutenant-Governor was in consequence authorized to commute it for transportation for life: on consulting, however, the Attorney General of the province, that officer has suggested doubts as to the mode in which the proposed mitigation of punish- ment can be lawfully carried into execution. You were pleased to enclose for our information a copy of the despatch from the Lieutenant-Governor, communicating a copy of the report made by the Attorney General ; and you further stated that you had been directed by Lord Stanley to request that we would take the subject into our early consideration, and state to his Lordship our opinion respecting the steps to be taken for giving effect to Her Majesty’s directions in favour of the prisoner. In obedience to his Lordship’s commands we have taken this matter into our consideration, and have the honour to report that we think a pardon ought to be granted under the Great Seal of the province, in which the condition of transportation and the place to which the convict is to be transported should be clearly expressed. The consent of the convict in writing should be previously obtained ; dent or subsequent, on the performance whereof the validity of the pardon will depend: Hawkins P. C. Bk. ii, c. 87, s. 455 see R. v. Miller, 2 W. BI. 797; R. v. Madan, 1 Leach, C. C. 223; 2. v. Dickie, ib. 890; and the Opinion of the Law Officers, p. 76, ante. - See also Stat. 16 & 17 Vict. c. 99,8. 5. As to cases where the Crown extends mercy to a prisoner convicted of a capital offence upon condition of his being kept to penal servitude for any term of years, or for life, see The Queen v. Baker, 7 Ad. & Ell. 502; Leonard Watson’s Case, 9 Ad. & EIl. ~ 783. Digitized by Microsoft® 462 CASES AND OPINIONS ON CONSTITUTIONAL LAW. after this we think the convict may lawfully (under 5 Geo. 4, ce. 84, s. 17) be brought to England in order to be conveyed to the place to which the transportation applies (1). G. W. Hope, Esq. F. Pottocg. &e. &e. &e. W. W. Fouvett. (7.) Jomst Oprnton of the Attorney and Solicitor General, Str A. E. Cocksurn and Sir Ricnarp Bete, that com- mutation of sentence from Transportation to Imprisonment with- out consent of the Convict is illegal. Temple, May 3, 1854. My Lorp Duxe,—We were honoured with your Grace’s com- mands, contained in Mr. Merivale’s letter of the 20th ultimo, in which he stated that he was directed by your Grace to transmit to us copy of a despatch and its enclosure from the Governor of Bar- badoes, reporting the commutation of a sentence for manslaughter ; also copy of the section of the Barbadoes Act referred to (5 Will. 4, c. 9, s. 9); also of a further despatch, enclosing a letter addressed to your Grace by the counsel for the prisoner, in his behalf. Mr. Merivale further stated that he was directed to request that we would take these papers into our consideration, and report whether we considered that the commuted sentence of nine years’ imprisonment was legally awarded in this case; and if not, what steps it would be proper for the Governor of Barbadoes to take? In obedience to your Grace’s command, we have taken the several papers transmitted to us into our consideration, and have the honour to report that we are of opinion that the commutation (1) It has been laid down that no man can contract for his own imprisonment: Clark’s Case, 5 Rep. 64; Foster v. Jackson, Hob. 61; Case of James Sommer- sett, 20 State Tr. 50. But, as was determined by the Court of Queen’s Bench in Leonard Watson’s Case, 9 Ad. & Ell. 783, this has no application to the case of a man charged with a crime, but permitted by the law to confess it before arraign- ment, and so enabled to obtain a pardon, by which his life is spared, but he binds himself to undergo a less severe punishment. In that case the Legislature of Canada had passed an Act authorizing the Governor to grant a pardon to such per- sons charged with high treason as should before arraignment confess their guilt and petition for a pardon, on such conditions as should seem fit; and the prisoner was so charged and so pardoned on condition of being transported to Van Diemen’s , Land for life. Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 463 of the sentence of transportation to imprisonment for nine years is illegal. The Crown has no power, except when such a power is expressly given by Act of Parliament, to commute a sentence passed by a court of justice. Practically, indeed, commutation of punishment has long taken place under the form of conditional pardons. For the Crown, having by the prerogative the power of pardon, may annex to a pardon such conditions as it pleases. Thus, for offences for which the punishment was death, where it was not deemed ad- visable to carry the sentence of death into execution, the course, from an early period, was to grant a pardon on condition of the convict being transported to some settlement or plantation. But this could only be done with the consent of the felon. The Crown cannot compel a man, against his will, to submit to a different punishment from that which has been awarded against him in due course of law. The sentence of transportation passed in the present case cannot, therefore, be changed into one of imprisonment, unless the substi- tuted punishment be assented to by the prisoner as a condition of the remission of the sentence of transportation. Even then, as the law has fixed the maximum of imprisonment, as corresponding to the maximum of transportation, at four years, it seems to us, that if the sentence of transportation be commuted into imprisonment, it would be desirable to act in consistency with the principle adopted by the legislature as to the relative propor- tions of the two punishments, and not to insist on a longer term of imprisonment than four years. His Grace the Duke of Newcastle, A. E. CockBurn. &e. &e. &e. RicHARD BETHELL. (8.) Jormwt Opinion of the same Law Officers, that in such a case the Original Sentence may be carried into execution. Temple, July 5, 1854. Srr,—We were honoured with his Grace the Duke of Newcastle’s commands, contained in Mr. Merivale’s letter of the 12th ultimo, in which he stated that, with reference to our letter of the 3rd of May last—wherein we reported that the commutation, by the Go- vernor of Barbadoes, in a case of manslaughter, of a sentence of Digitized by Microsoft® 464 CASES AND OPINIONS ON CONSTITUTIONAL LAW. transportation for life into one of imprisonment for nine years, was illegal under the law of the island—he was directed by his Grace to request that we would favour him with our further opinion, whe- ther the original sentence of transportation may now be legally carried into execution. In obedience to the above request we have again considered the subject, and have the honour to report— That, inasmuch as the commutation by the Governor of Barba- does of the original sentence into one of imprisonment for nine years was null and void, not being warranted by law, we are of opinion that the original sentence remains, and may be legally carried into execution. Under the circumstances, we think an offer should be made to the convict to commute the original sen- tence into a sentence of four years’ imprisonment with hard labour ; and if the convict refuses to assent thereto, that the original sen- tence should be carried into effect, The Right Hon. Sir G. Grey, Bart., A. E. CockBuRN. &e. &e &e. ; Ricuarp BETHELL. (9.) Jorxt Oprnton of the Attorney and Solicitor General, Sir Jonn CAMPBELL and Sir R. M. Rours, that a Witness ad- mitted to give Evidence for the Crown cannot refuse to answer questions on the ground that his answers may criminate himself, and that a Conviction obtained after such refusal is bad. Inner Temple, October 12, 1835. My Lorp,—We have to acknowledge the receipt of a letter from your Lordship, dated the 29th ultimo, together with a despatch from the Governor of the Windward Caribbean Islands, dated the 22nd of July last, with various enclosures relating to the case of George Lindsay, a prisoner in the common gaol of St. Vincents, who was tried by the supreme criminal court of that island for stealing a musquet—in which letter your Lordship is pleased to desire that we should report whether there was any valid objection, in point of law, to the conduct of Lindsay’s trial, or to his conviction? We beg leave, therefore, to state to your Lordship that, in compliance with your Lordship’s desire, we have taken this case into our considera- tion, and we are clearly of opinion that the trial of Lindsay was not conducted according to law. Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 465 The chief witness against Lindsay was a man of the name of Welbank,an accomplice, who was admitted as evidence for the Crown. Being so admitted, he was bound to disclose the whole truth relative to the charge in question, without regard to the consequences to himself, and he could not refuse to answer any question on the ground that it would show him to have been engaged in the same theft for which Lindsay was tried. The Court, however, permitted Welbank to decline answering many of the questions put to him, on the plea that he would be thereby criminating himself, and thus let his evidence go to the jury in an imperfect state. We think this was clearly wrong, and consequently that the conviction was improperly obtained. J. CAMPBELL. R. M. Rours. (10.) Jormnr Orrnion of the Attorney and Solicitor General, Str Joun CAMPBELL and Sir R.M. Rove, on the illegality of an Ordinance passed by the Governor and Council of Lower Canada, directing certain persons to be transported to Bermuda and detained there. Temple, August 6, 1838.° My Lorp,—In answer to your Lordship’s letter of the 4th instant, requesting our opinion whether there is any objection, in point of law, to the confirmation by Her Majesty in Council of an ordinance passed by the Earl of Durham and the Special Council of Lower Canada, on the 28th June last, entitled, “An Ordinance to provide for the security of the Province of Lower Canada,” we have to state that, in our opinion, so much of this ordinance as directs the class of persons therein first enumerated to be transported to Ber- muda, and to be kept under restraint there, is beyond the power of the Governor and Special Council, and void; but that all the rest of the ordinance is within their power and valid. The imperial stat. 1 Vict. c. 9, s. 2, authorizes the Governor and the Special Council to make such laws or ordinances for the peace, welfare, and good government of the province of Lower Canada, as the Legislature of Lower Canada as there constituted was em- powered to make, with certain exceptions which do not affect the validity of the ordinance in question. The Legislature of Lower Digitized by Microsoft® 25 466 CASES AND OPINIONS ON CONSTITUTIONAL LAW. Canada, as constituted by 31 Geo. 3, c. 31, had conferred upon it a general sovereign legislative power within the province, and it is expressly enacted that all Acts passed by this legislature shall be valid and binding, to all intents and purposes, within the province in which the same shall have been passed. — We conceive, therefore, that the old legislature might have law- fully passed an Act for banishing from the province the first class of persons described in this ordinance, and enacting that if any of this class or of the second class should return to the province with- out the leave of the Governor, they should be deemed guilty of treason, and being convicted thereof should suffer death. This could not be done by the proclamation of the Governor, but it is an act of legislation for which there are precedents in the Parlia- ments of Great Britain and of Ireland. There is no pretence for saying that if this part of the ordinance really were put in force the parties who suffer would be put to death without trial. Before they could suffer they must be indicted for having returned to the province without leave of the Governor, which by law is made treason, and they could only suffer on being duly convicted of the offence laid to their charge. Of course we are only considering the regularity of such a proceeding in strict law, without giving any opinion as to its being expedient or proper. With respect to that part of the ordinance which is to be executed beyond the limits of the province of Lower Canada, we are of opinion that it would acquire no force by being confirmed by Her Majesty, and we humbly conceive that in confirming the ordinance by Her Majesty that part of it which exceeds the power of the Governor and Special Council ought to be expressly excepted. The Lord Glenelg, J. CAMPBELL. &e. &e. &e. R. M. Roure, (11.) Jomnr Oprnton of the Attorney and Solicitor General, Srr Joun Jervis and Sir Joun Romy, on the power of Police Constables to arrest in certain cases without Warrant. 1849. Case.—Whether police constables are authorized to arrest and detain, without warrant, persons charged with the offences men- Digitized by Microsoft® ON CERTAIN POINTS RELATING TO CRIMINAL LAW. 467 tioned in the 64th and 65th sections of the Police Act (2 & 3 Vict. c. 47), upon the mere statement of the party making the charge, unsupported by any corroborative circumstances or evidence ; or under what circumstances such arrests without warrant are justi- fiable ? Opinion.—This question presents difficulties which can only be solved by prudence on the part of the officer. On the one hand, it would be highly improper to act in cases where the consequence is so serious upon mere suspicion; while on the other, if the police were only to apprehend parties charged with such offences upon the view, or in cases where corroborating evidence was forthcoming, offenders would escape and the public would be dissatisfied. Upon the strict construction of the statute no corroborative evidence is essential. If the constable has “good cause” to suspect, he may arrest upon the statement of one witness only. But whether the cause of suspicion is good or not must in such case depend upon circumstances. For instance, if an interval unexplained by the accuser have elapsed between the assault and the complaint, the constable should not act without a warrant. So of course, if in the inquiry the constable have reason to doubt the truth of the com- plainant’s story, or believe that he has entrapped the accused for the purpose of the charge, the cause of suspicion would not be good, and the constable ought not to act without a warrant. On the other hand, if the constable be attracted to the spot by the cries of the complainant, or if the accused give a contradictory or unsatis- factory account of himself, the constable should act without a warrant. We have mentioned these different circumstances only in illustration of what we have above said—viz., that much must be left to the prudence and discretion of the officer; and repeat that, in strictness, no corroborative evidence is necessary, but that the circumstances and charge must be such as would justify a reasonable man in suspecting that the offence had been com- me JOHN JERVIS. Temple, December 31, 1849. Joun Romixty. (2) A private individual may justify an arrest for felony without warrant, if he can show either that a felony was in fact committed by the person arrested, or that a felony was committed by some one, and that he had probable cause to ye ; 2H 2 Digitized by Microsoft® 468 CASES AND OPINIONS ON CONSTITUTIONAL LAW. (12.) Jomr Oprton of the Attorney and Solicitor General, Sir A. E. Cockpurn and Sir Ricnarp BetueEtt, as to the illegality of the delivery up of Russian Sailors (Deserters), and the conveyance of them back to their ships. Case.—Some Russian sailors were found wandering in the streets of Guildford without any visible means of subsistence, and were locked up for the night by the superintendent of police. They were afterwards identified by a Russian naval officer as deserters from a Russian man-of-war which had arrived in England, and they were conveyed by him to Portsmouth with the assistance of the superintendent. The Law Officers were requested to advise as to the legality of the proceeding. Temple, January 3, 1854. Opinion—We are of opinion that the delivering-up of the Russian sailors to the lieutenant, and the assistance offered by the police for the purpose of their being conveyed back to the Russian ship, was contrary to law. A. E. Cocksurn. RicHarD BETHELL. (13.) Jornr Opinton of the same Law Officers, as to how far Statute 16 & 17 Vict.c.99, abolishing Transportation in certain cases, is in force in the Colonies. Temple, December 5, 1858. S1r,—We were honoured with your commands, contained in Mr. Merivale’s letter of the 15th ultimo, in which he stated that he was directed by you to transmit to us the accompanying despatch from the Governor of New South Wales, with its enclosures, and to request that we would favour you with our advice on the following point :— That, referring to the letter of the 20th of February last, from suspect the person arrested to be the felon, “It is lawful,” said Abbott, C.J., in Ex parte Kraus, 1 B. & OC. 261, “for any person to take into custody a man charged with felony, and keep him until he can be taken before a magistrate :” Mure v. Kaye, 4 Taunt. 34; West v. Baxendale, 6 C. B. 141.